Volume 178 — Massachusetts Reports

<p>Two ACTIONS OE toet for personal injuries to the plaintiffs while in the defendants’ employ by the falling of the third floor of a brick school building in process of erection by the defendants under a contract with the city of Brockton. Writ dated October 18, 1899.</p> <p>The declaration in each of the two cases was as follows:</p> <p>“ And the plaintiff says he was employed by the defendants as a bricklayer on a building known as the Howard School; that it was the duty of the defendants to furnish the plaintiff with a safe and suitable place in which to perform his work, but that the defendants wholly regardless of their duty negligently and carelessly put the plaintiff to work in an unsafe and dangerous place, namely, under a flooring which was heavily loaded with boards and lumber, and improperly supported, that the defendants knew or in the exercise of reasonable care might have known, that the place where the plaintiff was at work was unsafe and dangerous, and that the plaintiff was ignorant of the fact that said place was so unsafe and dangerous, and while in the exercise of reasonable care in every respect, the plaintiff was severely injured by the falling of the flooring and timbers upon his head and body. And the plaintiff says that he was injured solely by reason of the negligence of the defendants in carelessly and improperly loading said flooring and unsafely, imperfectly, and carelessly supporting said flooring under which the pláintiff had been placed at work.”</p> <p>The two cases were tried together, before Mason, C. J., and the following facts equally applicable to each appeared:</p> <p>The written contract between the plaintiffs and the defendants provided that the plaintiffs with two other masons should perform in a “faithful and workmanlike manner ... all labor in laying all brick work at the Howard School addition . . . including chimneys, heating and ventilating system and any other brick work which may be required to complete the building according to plans and specifications, . . '. and to comply with all conditions in the specifications relating to that part of the work included by this agreement. All work to be done to the satisfaction of the Superintendent of Public Property of the City of Brockton.” The plaintiffs were to receive “ six dollars per one thousand for all brick laid.”</p> <p>It appeared in evidence that these four masons had selected one of their number, William Simmons, as the working manager. Simmons testified that he partly had charge of the work, that the others looked to him to give directions, and that he received orders and directions from no one. The plaintiff, Eldred, was asked whether Simmons was in charge of the work and answered, We all did it together ”; and when asked whether he was not the guiding hand replied, “ Well, we kind of chose him. to go ahead and look out.”</p> <p>The plaintiff, Goodspeed, testified that they worked in harmony with the carpenters, that on that morning no one directed them to go to work on the chimney, that they knew where to go to work of their own accord from time to time. “We took hold to the best advantage and kept it along wherever it was necessary or needed; on the morning [of the accident] we had about an hour’s work on the gable and after the gable was finished we went inside on the chimney, there was no other work to do, we either had to go to work on the chimney or go home, and as they were very anxious to have the chimney done, of course it needed no telling from any one; there was no other place for us to work; it was necessary for us to work in that particular place and they had been urging us, well, for two or three days, at least, to hurry the chimney along. They took and advised and directed us, a general direction of the whole business.”</p> <p>The plaintiffs, on August 26, 1899, while at work on the second floor, looking for support for a staging for the chimney underneath said third floor, were injured by the fall of the third floor upon them. This floor was supported solely by a prop or shore under the main girder, the girder at the time not being fastened by the iron rods to the truss above. On the floor at the time it fell were one of the defendants and two workmen placing the iron rods in position.</p> <p>One of the defendants was present practically all of the time and at the time of the accident was on the third floor. He testified that he had charge of the construction of the building generally speaking, and had tried to hurry the masons on their work and had asked them to put on more men. The superintendent of public buildings of the city had requested the defendants to hurry up the job. During the progress of the work, some changes were made in the work not required by the contract, and the plaintiffs were notified of the changes by the defendants and they were made, and the defendants at various times had directed the plaintiffs to hurry up with the chimney. On the day of the accident, the walls were up and all brick work completed except the chimney. There was evidence which was denied that one of the defendants a short time before the floor fell remarked that the prop was bending; no notice was given to the plaintiffs of the condition of the prop or of the floor.</p> <p>Evidence was submitted on the question of negligence of the defendants in improperly loading and supporting the third floor.</p> <p>The Chief Justice instructed the jury as follows:</p> <p>“ The breach of duty which these plaintiffs allege as the ground of their action is that the defendants put them at work in a dangerous place. The court is of the opinion that there is no evidence which would warrant the jury in finding that the defendants put the plaintiffs at work in a dangerous place. Under their contract, they chose their own time and way of doing their work and did not receive from the defendants any specific direction to work in this particular place where the danger was encountered. It consequently becomes necessary to direct a verdict for the defendants.”</p> <p>The jury returned a verdict for the defendants; and the plaintiffs alleged exceptions.</p>

<p>Where a writ has been served by trustee process and judgment is entered against the defendant and the trustee, and the defendant appeals but the trustee does not, whether the question of charging the trustee is open to the defendant on his appeal, quaere.</p> <p>Where, in an action not for the price of necessaries, two successive services of a writ were made by trustee process upon the employer of the defendant as trustee, and the trustee had in his hands at the time of each service upon him a sum less than twenty dollars due the defendant as wages, and thereafter the plaintiff failed to enter his writ and brought a new writ for the same claim adding another defendant as copartner of the defendant in the first writ, and served it upon the same trustee, and it appeared that the trustee had still in his iiands the wages previously attempted to be attached, which in all exceeded the sum of twenty dollars, and nothing appeared to show want of good faith on the part of the plaintiff in abandoning his first action and bringing another against the two defendants, it was held, that the defendant’s wages in the hands of the trustee in excess of twenty dollars were not exempt from attachment, the plaintiff being in the same position as if the new action had been brought by a third party.</p>

<p>Tort to recover compensation for injuries received by the plaintiff, while employed in a machine shop connected with the hat factory of the defendant. Writ dated January 15, 1897.</p> <p>A former verdict for the plaintiff in this case was set aside under a decision of this court reported in 172 Mass. 548. At the new trial in the Superior Court, before Braley, J., the following facts appeared:</p> <p>The plaintiff, a young man eighteen years old, who had previously worked as a weaver three or four months, entered the employment of the defendant as an apprentice in the machine shop about three weeks before the accident. He was turned over to one McClellan, an experienced apprentice, to be shown his duties. Among other things he was directed to oil the shafting once a week. McClellan took him to a place near the end of a shaft and, while the plaintiff was watching, placed a step ladder under the shaft and poured the oil from an oil can into a small oil hole on the shaft hanger. On the shaft near this oil hole was a collar, held in place by a set screw projecting therefrom between an inch and one eighth and an inch and seven eighths. The shafting revolved at the rate of from ninety to a hundred revolutions a minute. The set screw was plainly visible from the floor “ and you could see it going round if you looked at it.” It was not in the way of one approaching the oil hole when the step ladder was placed as McClellan placed it when he was showing where and how to oil. Two weeks later, the plaintiff being asked by McClellan if he had oiled up, replied that he had forgotten to but would go and do it. The plaintiff then procured a step ladder and, because there were some castings on the floor at the spot where McClellan had placed the step ladder-in showing him howto oil, set his ladder' on the opposite side of the shafting, and with his oil can climbed up so as to be close to the shafting at the place where the set screw and oil hole were, with the upper part of his body above the shafting. Reaching over the set screw and the shafting, he undertook to put the oil into the oil hole, and the loose sleeve of his overall jacket catching in the set screw bound him to the shafting and he revolved with it. The castings, thrown in a heap on the floor, were brought there by the plaintiff and others by order of the foreman, one Sackett. As to these castings, the plaintiff testified that he could have laid them one side if he was told to, but that he did not know that Mr. Sackett would have been satisfied to take them away from there. The plaintiff testified that the set screw had never been pointed out to him; that when he set up his ladder he looked up and saw the shafting revolving; that he could see the oil hole; that he did not see the set screw; that he did not look to see what was there; that' he looked for the oil hole and that was all he looked for, and that it was quite dark.</p> <p>It was agreed “ that ten .years ago such a device, a projecting set screw, with others, was in common use, but since that time this device has been going out of use, and in the last ten years it has not been commonly used in establishments constructed during that time, although it' is used in some instances in such establishments, and that many establishments existing ten years ago have got rid of this device and substituted another; that the device on account of the great danger attending it has been regarded by mechanics in this period as unsuitable. The projecting set screw, however, does the work intended of holding the collar to the shaft.”</p> <p>John Marshall, called by the plaintiff, testified that he was a brother of the defendant, .and that he was interested in and connected with the hat factory; that he thought the hat factory was started about 1892; that the building was formerly the old Wyoming Thread Mill, and the room where the accident happened was the machine shop of the old mill; that he came from Pawtucket, and that the first time he went into the factory was after it was started ; that he found the shafting there, but that he did not know whether or not any change had been made in the shafting of the old machine shop, and that he did not know how long the shafting had been there.</p> <p>At the conclusion of this evidence, the defendant asked the judge to direct a verdict for the defendant. This ruling was given, against the objection of the plaintiff. The jury returned a verdict for the defendant as directed. At the request of the parties the judge reported the case for the consideration of this court, upon the agreement that if the ruling directing the verdict for the defendant was wrong, the question of liability was to be considered settled in favor of the plaintiff, and the case was to be sent to a jury solely for the purpose of assessing damages. If the ruling was right, then judgment was to be entered on the verdict for the defendant.</p>

<p>Contract with two counts, the first count declaring on a promise alleged to be contained in the certificate of the defendant held by the plaintiff as stockholder, to pay the plaintiff $1,000 in five years from January 1, 1890; and the second count declaring on an account annexed, to recover sixty monthly payments of $10 each and twenty quarterly payments of $2.50 each made by the plaintiff to the defendant between January 1, 1890, and December 31,1894, under the terms of said certificate, with interest thereon, amounting in all to $862.88. Writ dated December 16, 1897.</p> <p>At the trial in the Superior Court, before Braley, J., it appeared that the plaintiff’s certificate was ¡Number 2544 for ten shares, and that the face of it read as follows: “ This is to certify that Michael R. Daley of Fall River, State of Massachusetts, is hereby constituted a shareholder in The People’s Building, Loan and Saving Association, incorporated under the laws of the State of New York, and holds 10 shares therein of One Hundred Dollars each, and in consideration of the entrance fee, together with agreements and full compliance with the Terms and Conditions printed on the back of this Certificate, and the Articles of Association and By-Laws adopted by the said Association, all of which are hereby referred to and made a part of this contract, the said The People’s Building, Loan and Saving Association agrees to pay said shareholder, or his heirs, executors, administrators or assigns, the sum of one hundred dollars for each of said shares, at the end of five years from the date hereof, or, in case of his death before the expiration of said' term, then a sum of money equal to the amount of monthly installments paid on said shares, together with all dividends accrued thereon; all of which are payable in the manner and upon the conditions set forth in the articles of association and by-laws and terms and conditions printed on the back of this certificate. Given under the seal of said Association, at Geneva, N. Y., this first day of January, 1890. D. F. Attwood, Sec’y. M. S. Sanford, Prest.”</p> <p>Among the Terms and Conditions printed on the back of the certificate were the following: “ First. The shareholder or person who is to pay all installments under this Certificate, agrees to pay or cause to be paid to the Association a monthly installment of one dollar for each share mentioned in the certificate, on or before the last Saturday of each month during the continuance of the certificate.</p> <p>“ Second. The shareholder or person who is to pay all installments under this certificate, agreés to pay, or cause to be paid to the Association, a quarterly installment of twenty-five cents for each share mentioned in the certificate, on or before the last Saturday of the third, sixth, ninth and twelfth months of each current year.”</p> <p>Then followed provisions for fine, cancellation and forfeiture in case of non-payment of instalments when due.</p> <p>“ Eighth. The Articles of Association, By-laws, terms and conditions, together with the application, are to be construed together as the contract between the Shareholder and the Association.”</p> <p>u Tenth. All payments under the within certificate are payable at the office of the People’s Building, Loan and Saving Association, Geneva, N. Y., after acceptance and approval of satisfactory proofs.</p> <p>“ Eleventh. Any action brought against this Association by any Shareholder shall be brought on or before six months after filing his proofs, and in the County of Ontario, State of New York.”</p> <p>It appeared that the plaintiff made all payments required by the contract up to January 26, 1895, but on that day and thereafter failed to make the payments required.</p> <p>At a meeting of the board of directors of the defendant, held on March 26,1895, the following resolution was adopted: “ Resolved, That the proper officers of the association, by legal proceedings at once publish notice of forfeiture of stock now forfeitable under articles of the association and By-Laws, except borrowing stock and that all stock in arrears be forfeited on completion of legal proceedings and that said action be taken every three months until further order.”</p> <p>It was admitted by the plaintiff that the following notice to stockholders signed in the name of the defendant by its president and secretary was published in the Syracuse Post Express, a weekly newspaper, at least once a week for ten successive weeks, beginning July 11, 1895:</p> <p>“To all stockholders and members of the People’s Building, Loan & Saving Association who are in default for six months or more in the payment of dues, installments or money upon stock owned by you in said association:</p> <p>“ Take notice that you are hereby required to make payment to the association within sixty days from the date of this notice, at its office, 215 Kirk Block, Syracuse, N. Y., of all installments, dues, fees, fines or moneys due and unpaid on the capital stock of said association owned by you, according to its articles of association, by-laws, rules and regulations; and that in case of your failure to do so your shares of stock and all previous payments made thereon will be forfeited. Dated Syracuse, N. Y., July 11,1895.”</p> <p>At a meeting of the board of directors of the association held on November 12, 1895, the following resolution was adopted: “ Resolved, That all stock in arrears for six months or more, the holders of which have been served with notice by publication, and more than sixty days having elapsed since publication of said notice, be and the same is hereby forfeited, and the amounts paid on the. same shall be placed in the undivided earnings of the association.”</p> <p>To the minutes of the meeting was attached a typewritten list entitled “ List of Forfeited Stock,” on which appeared, among other names, the following: “ M. R. Daley, Fall River, Mass., No. 2544.”</p> <p>In a letter dated December 4,1895, in answer to a letter sent by the plaintiff to the defendant the secretary of the defendant wrote to the plaintiff: 61 Your certificate for ten shares has been forfeited for non-payment of dues in accordance with the rules of the association,” and this statement was repeated in letters from the secretary to the defendant dated December 28, 1895, and April 25, 1896, the last named letter being as follows: “.Replying to your favor of the 23rd. Your certificate No. 2544 has been forfeited for non-payment of the dues.”</p> <p>All other material facts are stated in the opinion of the court.</p> <p>At the close of the evidence, at the request of the defendant and against the objection of the plaintiff, the judge ruled that the plaintiff could not recover, and the jury being so directed, returned a verdict for the defendant.</p> <p>At the request of the parties, the judge reported the case for the consideration of this court, with the agreement, that if such ruling and direction was wrong, judgment was to be entered for the plaintiff as of January 8, 1900, for $862.38, with interest from the date of the writ, or in case the plaintiff was entitled only to recover the withdrawal value of his stock, for $554.07, with interest from the date of the writ; otherwise judgment was to be entered on the verdict.</p>

<p>If a plaintiff discontinues an action against one of two defendants and by mistake of remedy proceeds unsuccessfully against the wrong defendant, this is no bar to a subsequent action against the other.</p> <p>An infant does not lose his right to disaffirm a contract because he cannot put the other party to the contract in statu quo.</p> <p>The subscribers for shares of a corporation that has voted to wind up its business and has transferred all its property to a new corporation formed for the purpose, who receive certificates for shares in the new corporation to the number subscribed for in the first corporation, continue to be stockholders of the first corporation and are not partners in relation thereto.</p>

<p>Under St. 1888, c. 429, § 8, which is not changed by subsequent amendments as to the words in question, a mortuary benefit on the death of a member of a fraternal beneficiary corporation may be payable to the “children, relatives of, or persons dependent upon such member.” Held, that an illegitimate infant daughter of a deceased member not supported by him during his lifetime, who was designated by him as his beneficiary, could not take as such beneficiary, not being a child or relative of or person dependent upon such member within the meaning of the statute.</p>

<p>Two Actions OE conteact against the owner and master of the coasting schooner William J. Lipsett, each to recover a sum equal in amount to one month’s wages, in addition to wages earned by the plaintiff at the time of his alleged wrongful discharge by the defendant. Writ dated August 10,1899.</p> <p>The declaration in each case alleged, that the plaintiff shipped at Philadelphia on August 1, 1899, for a coasting voyage between the port of Philadelphia and the port of New Bedford, and by the shipping articles bound himself to serve upon the schooner William J. Lipsett, of which the defendant was owner and master, for the term of two months, as seaman at the wages of $25 per month and board or provisions and lodgings on board of said schooner; that the plaintiff entered upon the performance of his agreement and continued therein, until the schooner reached the port of New Bedford, and was ready and willing to continue in the performance of his agreement, but the defendant wrongfully refused to suffer or permit the plaintiff to continue in the performance of his agreement, and wrongfully discharged him at New Bedford, on the 8th day of August, and compelled him to leave the schooner. The claim in each case was for $6.66 earned as wages up to the time of discharge, $25 for a sum equal in amount to one month’s wages, and $16 for board and lodging, making $47.66 in all.</p> <p>The claim to recover a sum equal in amount to one month’s wages was based upon U. S. Rev. Sts. § 4527, which provides that “ Any seaman who has signed an agreement and is afterward discharged before the commencement of the voyage or before one month’s wages are earned, without fault on his part justifying such discharge, and without his consent, shall be entitled to receive from the master or owner, in addition to any wages he may have earned, a sum equal in amount to one month’s wages as compensation, and may, on adducing evidence satisfactory to the Court hearing the case, of having been improperly discharged, recover such compensation as if it were wages duty earned.”</p> <p>In the Superior Court, the defendant in each case filed a motion to dismiss for want of jurisdiction, on the ground that the subject matter and form of suit were in the nature of admiralty, of which the United States courts have exclusive jurisdiction. The Superior Court allowed the motions and dismissed both cases for want of jurisdiction. The plaintiffs appealed to this court.</p>

<p>In an action by an employee in a shoe factory to recover from his employer for injuries caused by his foot slipping in a depression in the concrete floor of a passage between two machines, it appeared that the plaintiff had been at work in the room where the accident occurred for six months, and for the two weeks preceding the accident was employed on work that required him to pass over this passage every day and it might be many times a day. The depression was filled with leather dust of a darker color than the concrete and appeared to have existed at the time, the plaintiff entered the employ of the defendant and continuously until the time of the accident. Held, that the risk of injury from this defect was obvious and was assumed by the plaintiff.</p>

<p>Tort by a boy employed in a rubber factory to recover damages from his employer for injuries sustained while engaged in feeding rubber into a machine to be pressed between two revolving cylinders. Writ dated June 11, 1898.</p> <p>The declaration contained four counts, the first three under the employers’ liability act, and the fourth at common law. The common law count alleged a failure to warn the plaintiff of the dangers of the machine on which he was at work, and to instruct him as to the proper and safe manner in which the work intrusted to him should be done.</p> <p>At the trial in the Superior Court, before Sherman, J., it appeared, that the plaintiff was injured on May 7, 1898. He testified that he was nineteen years old on June 12, 1897. One Montague, who was an operator in the defendant’s factory, had charge of the machine by which the plaintiff was injured. The character and use of the machine are described in the opinion of the court. The plaintiff gave the following account of the happening of the accident:</p> <p>“ He [Montague] said, ‘ Have you got any of that scrap rubber left?’ I said, 6 Yes, sir.’ He says, 6 You go down stairs and feed it into the mill.’ I said, ‘ I don’t know how to do that; I never done it before.’ He said, ‘ You go down stairs and you roll those scraps up in a roll, and you pick them up off the floor and you walk around the mill, between the bench and the mill, and put the scraps on there, and hold your right hand underneath the rolls to catch them when they come through, and bring them up around on the rolls, and let them go around like that till I come down. I will be down soon and then I will show you what to do next on the machine.’ Then he said, 1 If those scraps don’t come down through the rolls then, you push them down with your left hand.’ I mean by the word ‘ rolls ’ cylinder or roller. I came down stairs, went over to this mill where he sent me and I did as he told me, rolled these scraps in a roll, took them up and walked around where he told me to go, in between this bench and the mill, and put the rubber on there, scrap rubber, and I held my right hand underneath the rolls for quite a little while, and they did n’t seem to come through then, so I pushed them down with my left hand, and in pushing them down my hand went in with the rubber.”</p> <p>On cross-examination the plaintiff testified as follows: “ I knew at that time that if the.rubber did n’t come down through the rolls at all there would be no occasion to have my hand there. I rolled the rubber up in a rough roll that was probably six inches thick. I put that roll between the revolving cylinders. I saw these revolving. I noticed that the roll of rubber did n’t go down throúgh. I knew that the rubber was going to go through when I pushed it. If I had n’t pushed it, I knew that there was no rubber coming down between the cylinders, and I knew there was nothing there to get hold of with my right hand at that time.' I knew that if the space between the two rolls had been larger than the rubber it would have dropped right down through, and I knew that the reason it did n’t go down through was because the roll was bigger than the space between the two cylinders. I knew that the roll of rubber was a big roll. I pushed it so as to have it go through. I pushed it because Mr. Montague told me to push it. He told me to push it so as to have it go through. If I had n’t pushed it I don’t think it would have gone through. I knew that if the space between those two cylinders was one inch, that a roll of rubber which was two inches thick would have to be pushed to go down through. I knew that when the rubber once caught between the two cylinders it would go down itself. I knew that if my fingers were with the rubber they would go down with it. I knew that when I put the rubber between the cylinders and it went down througli it would be somewhat squeezed. When I put it on I realized that it did n’t go through. I knew at that time that the cylinders were revolving, and I pushed the rubber for the sake of getting it caught between the two cylinders so that it would go down through, and I put my hand on it for that purpose. I pushed my hand down in the direction of the centre of the two cylinders or the middle of the two cylinders, as they were coming together. My hand was on top of the rubber. There was nothing to conceal any part of the cylinders in the way of a hood, or any other piece of machinery or anything of that kind. While I was stooping I was looking at my hand that was pushing the rubber in. My stooping did not in any way interfere with my seeing where my hand was. I could see I was pushing the rubber down through and in what direction I was pushing and the cylinders revolving. My hand was right over the rubber, on top of the rubber. I put the rubber in lengthwise. I put my hand right over the roll of rubber and pushed the rubber right down between the two revolving cylinders. I could see I was pushing the rubber down, and I was pushing it down for the purpose of having it catch between the cylinders and go down between. I was pushing the rubber through to bring it around the other roll. I knew that the roll of rubber would flatten when going through between the cylinders, and I'knew that was by the pressure of the two cylinders together on the rubber as it went down through.”</p> <p>At the close of the evidence, the judge ruled, at the request of the defendant, that the action could not be maintained, and by his direction the jury returned a verdict for the defendant. At the request of the plaintiff, the judge reported the case for the consideration of this court.</p> <p>If the ruling was wrong, the verdict was to be set aside and a new trial ordered; otherwise judgment was to be entered on the verdict.</p>

<p>A pretended forfeiture of membership falsely set up by a loan and saving corporation, as a reason for not complying with a demand for certain payments alleged by a shareholder of five years standing to be due to him under the terms of his certificate, does not justify such shareholder in rescinding his contract under which lie has made monthly payments during the five years, and his only remedy is on the contract; and if the corporation was organized in another State and the certificate provides that any action brought by a shareholder against the corporation shall be brought in that State, there is no remedy here.</p>

<p>Bill in equity to reform a contract for steam piping a building of the defendant in Worcester, filed August 15, 1898.</p> <p>The bill alleged, that previous’to January 28,1898, the defendant furnished the plaintiff with certain specifications, a copy whereof was annexed marked “ A,” for steam piping in a building at the corner of Foster and Norwich Streets in Worcester, which the defendant was then erecting, and requested the plaintiff to make prices therefor according to certain specifications; and thereafter, on January 28, the plaintiff submitted to the defendant a written statement, a copy of which was annexed marked “ B,” wherein he gave prices for said steam piping as follows: “For the whole building, $3,719; for the building below the three top floors, $2,854; and without the tanks and No. 8 Worthington pump, $2,260”; that the defendant decided to put in at that time the piping below the three top floors without the tanks and the Worthington pump, and to leave the installation of the work on the three top floors open for future consideration, and on February 8, 1898, the defendant himself or through his agents, drew up a proposition or agreement in writing, a copy whereof was annexed, marked “C,” for the plaintiff to sign, which proposition or agreement the plaintiff and defendant both signed.</p> <p>The specifications marked “A” contained the following: “ Steam piping for A. S. Lowell, Worcester, Mass. The piping as shown on plan is as follows: [Here followed specifications of the piping required.] Make price on piping without tanks and elevator pump and with. [Here followed specifications for tanks and elevator pump.] Make price on complete plant. Make price on plant without heating system above the second floor.”</p> <p>The plaintiff’s bid of January 28, 1898, marked “ B,” was as follows:</p> <p>“ Piping for the A. S. Lowell Block, Worcester, Mass. We, the undersigned Whitworth Heating Co., agree to put in the piping, valves, pumps and all connections as shown on plans. [Here followed an enumeration of the piping and appliances to be furnished.]</p> <p>“ Without the three top floors, $2,854.00. “ Without the tanks and No. 8 Worthington pump $2,260.00. The above price include the whole system'with the exception of the automatic valve for pressure tank which I have not been able to find.”</p> <p>The document marked “ C,” which was signed by the parties and became the contract, was as follows:</p> <p>“ Worcester, Mass., Feb. 8,1898. Mr. A. S. Lowell, Worcester, Mass. Dear Sir: We propose to install in your new building, corner of Foster and Norwich Streets, a complete system of piping for power and heating purposes, in strict accordance with plans and specifications furnished by Lewis & Claflin, and further agree to forfeit the sum of $10 per day for each day after March 10, 1898, that the work necessary for the occupancy of the building is delayed, provided circumstances beyond our control do not interfere.</p> <p>“ The price for the above is twenty-two hundred and sixty dollars ($2,260.00).</p> <p>“We further agree to install all work above second floor any time previous to September 1,1899, for the sum of .nine hundred and sixty-five dollars ($965.00), this sum being deducted from the total cost for the whole building, if not done.</p> <p>“It is hereby understood and agreed that this last proposition is to be subject to any changes in the price of stock which may occur between the present date and September 1st, 1899. Respectfully submitted, Whitworth Heating Co., Wm. Whitworth, Treas. A. S. Lowell.”</p> <p>The bill further alleged, that in the first clause of said proposition or agreement either by accident, mistake, or by fraud on the part of the defendant or his agents, the work and materials to be performed and furnished by the plaintiff were not limited and confined to the building below the three top floors as was intended by the plaintiff as the defendant or his agents then well knew, and as appears also in the third clause of said proposition or agreement; that the plaintiff performed the work and furnished the material for piping for power and heating purposes in said building except in the three top floors in accordance with the specifications and his agreement, and the defendant paid him on account thereof the sum of $1,000, leaving the sum of $1,260 still due the plaintiff thereon, but that the defendant now contends that the $965 for future work should be deducted from the $2,260 instead of from the $3,719, the price for the whole building, and that he only owes the plaintiff thereon the sum of .$295.</p> <p>The plaintiff prayed that the first clause of said agreement might be reformed by inserting after the word “purposes" in the third line thereof the following words “ below the three top floors,” or in some other way to make it conform to the intention of the parties thereto at the time it was executed, and prayed for an enforcement of the contract as reformed.</p> <p>In the Superior Court the case was referred to a master who reported as follows:</p> <p>“ First. In the month of January, 1898, the plaintiff and the defendant had a conversation in relation to the plaintiff’s installing a heating plant in a building then being erected by the defendant in the City of Worcester. After some discussion of the subject, the defendant referred the plaintiff to his engineers, Lewis & Claflin, of Providence, Rhode Island, under whose supervision the building was being erected. Subsequently, W. B. Lewis, of the firm of Lewis & Claflin, sent or gave to the plaintiff a paper containing the specifications in regard to heating the defendant’s building, of which a copy was annexed to plaintiff’s bill, marked ‘A.’</p> <p>. “ Second. On or about January 28, 1898, the plaintiff gave or sent to said Lewis, an unsigned proposal or agreement, concerning the said heating, a copy of which was annexed to the plaintiff’s bill and marked 6 B.’ Between the time of the first conference between the plaintiff and defendant, and February 8, 1898, the plaintiff and Lewis had several conversations relating to installing the heating plant, but no definite agreement or understanding in relation thereto, was reached before February 8, 1898. A few days before February 8, 1898, the plaintiff was informed by one Parker, acting for Lewis, that he, Lewis, had decided to give him the job on the bid, and to go to work on it, and that he would be up in a few days and fix up the contract. The plaintiff thereupon began and worked three or four days on the job, before February 8, 1898.</p> <p>“ Third. On February 8,1898, Lewis drew up in writing, an agreement for the plaintiff and defendant to sign, a copy of which agreement is annexed to plaintiff’s bill, marked ‘ 0,’ excepting the following words, — ‘ providing circumstances beyond our control do not interfere.’ Lewis gave this agreement to the plaintiff to read and consider. The plaintiff, after reading the agreement, expressed a desire to have incorporated into it the provision,— ‘ Providing circumstances beyond our control do not interfere.’ Lewis assented to this, and the plaintiff thereupon took the agreement to a typewriter, and after the insertion of the above provision, had the same set in type.</p> <p>“ The plaintiff then signed the agreement marked ‘ C ’ and took it to the defendant, who also, after reading it, signed it. I find that the defendant never saw the specifications ‘ A ’ nor the unsigned agreement 6 B ’ until this hearing, and that the only paper or agreement he had any knowledge of, was the contract ‘ C ’ signed by him.</p> <p>“ Fourth. I find that the plaintiff had opportunity to fully consider and understand the terms of said agreement ‘ C.’ I do not find that said Lewis practised any deception or fraud in obtaining the plaintiff’s signature to said agreement.</p> <p>“ Fifth. I find that after the plaintiff had put in some portion of the heating plant, and long before the work was completed, the plaintiff was suspicious that the agreement was not what he thought it was, at the time of signing it, and a doubt arose in his mind as to whether the sum of $965 was to be deducted from $2,260, or added to that sum in case the three top floors were furnished with heating appliances. The plaintiff did not inform the defendant, or Lewis, of his doubt or suspicion, but continued on in the work of installing the plant, assuming that the contract meant that the $965 was not to be deducted from the $2,260, but to be added thereto in case the three top floors were furnished with heating appliances.</p> <p>“ Sixth. The plaintiff after the signing of said agreement, proceeded with thé work contemplated, and furnished material and work for heating purposes in said building, except in the three top floors, substantially in accordance with the specifications and agreement.</p> <p>“ Seventh. After the completion of the heating plant, the plaintiff called upon the defendant for a settlement of the account, stating that he understood that he was to receive $2,260 for installing the plant on the two lower floors. The defendant denied this construction of the contract, and contended that the contract was for.$2,260, less $965, for the three top floors, which had not been furnished with heating apparatus.</p> <p>“ Eighth. I find that the plaintiff supposed, at the time he signed contract ‘ C,’ that he was to receive $2,260 for installing the heating plant on the two lower floors, and that he was mistaken in the meaning and purport of the agreement£ C.’</p> <p>“ Ninth. The evidence fails to satisfy me that either the defendant, or the defendant’s engineer Lewis, understood that the agreement was for $2,260 for the two lower floors.</p> <p>“ Tenth. I therefore find that the failure to limit or confine the contract price of $2,260 to the two lower floors, was not an accident, was not procured by fraud, and was not a mutual mistake of the parties to the contract.</p> <p>“ Eleventh. Upon the foregoing findings of fact, I rule as a matter of law, that the plaintiff is not entitled to have said contract ‘C ’ reformed; and that the defendant is entitled to have the $965 deducted from the $2,260, leaving the sum of $1,295 as the amount the plaintiff is entitled to receive under agreement £ 0.’ ”</p> <p>The other findings are not material to the case as now presented.</p> <p>The master also reported as follows: “ Before making a rough draft of the report the plaintiff’s and defendant’s counsel filed with me requests for findings and rulings, which requests accompany this report. Having made a rough draft of the report,</p> <p>I notified the respective counsel thereof, and subsequently heard their suggestions and requests as to my final draft. I thereupon made the foregoing final draft of the report, and gave notice thereof to the respective counsel on December 29,1899. On the first day of January, 1900, the plaintiff’s counsel filed with me his objections to my report, which objections accompany this report.”</p> <p>The plaintiff’s objections to the master’s report and his requests for findings and rulings were appended to the master’s report as stated in the opinion of the court.</p> <p>The master’s report was filed January 5, 1900, and on January 10, 1900, the plaintiff filed the following statement: “Now comes the plaintiff and excepts to so much of the master’s report as is inconsistent with the plaintiff’s objections and his requests for findings and rulings, which objections and copies of the requests are appended to the master’s report.”</p> <p>The case was heard in the Superior Court- by Pierce, J., who entered a decree as follows: “ 1. That the objections to the master’s report be and hereby are overruled. 2. That the, master’s report be and hereby is accepted and confirmed. 3. That the exceptions to the master’s report be and hereby are overruled. 4. That it appearing as a matter of record that this court upon the defendant’s motion awarded the plaintiff his costs, and the same were taxed by the clerk pursuant to the order, to January 11, 1900, and it appearing that on that date the defendant tendered and brought into court for the plaintiff the amount found due the plaintiff by the master’s report, together with interest thereon to January 11, 1900, and also that the defendant on that date tendered and brought into court for the plaintiff, the plaintiff’s taxable costs as decreed by the court to January 11,1900, and that the plaintiff received and accepted said sums so tendered and brought into court, now therefore it is ordered that the defendant be awarded the taxable costs from January 11,1900.”</p> <p>From this decree the plaintiff appealed.</p>

Contract on a life insurance policy brought by the son of the insured alleged to have supported her and paid her funeral expenses and to have paid all the premiums on the policy. Writ dated April 11,1899. At the trial in the Superior Court, .before Bishop, J., the plaintiff offered in evidence a life insurance policy issued by the defendant on the life of one Esther Lewis, dated November 28, 1898, and proofs of the death of an Esther Lewis.

<p>Tort to recover for personal injuries sustained by the plaintiff in falling from an unfinished granite staircase designed to be part of the approach to a station of the defendant at Forest Hills in Boston. Writ dated December 2,1896.</p> <p>At the trial in the Superior Court, before Hardy, J., the plaintiff, Emma Reimer, sixteen years old at the time of the accident and by occupation a stenographer, testified that she left Nor-wood to go to a theatre in Boston, took an electric as far as Forest Hills, and from there intended to take a train ; that she left the cars and walked along the sidewalk on Washington Street until she came to a place nearly opposite the stairs up which she went. That she crossed over and walked along a “ little beaten path through the mud ” that led to the steps, and when she got to the top she stood and looked around, as anybody would in an unfamiliar place; that the night was very dark and misty, and there was a drizzling rain ; that she did not see anything but two lights in the distance, which she supposed was a railway station; that she took a step forward and fell into a hole. The plaintiff then described how she had come from the place where the electric car stopped, on the right hand side of Washington Street, going in a northerly direction, until nearly opposite the steps. When she crossed over from the opposite side of Washington Street, the street was muddy, as it naturally would be, and she met this path which led to the foot of the stairs, and the path was not quite so muddy as the rest of the street. There was no obstruction in the path, and there' were no written notices or lanterns there. The plaintiff testified that she saw something upon the outside of the steps, but did not examine it, and most likely thought it was a railing. It ran along the outside edge of the stairs all the way up. There were four in the party, the plaintiff being in advance of the others.</p> <p>On cross-examination she said: “ I think we must have left Norwood somewhere round seven o’clock. When we reached Forest Hills it was round eight o’clock. We expected the theatre would begin in the neighborhood of eight o’clock or quarter before. I do not remember when we formed our intention of taking the steam cars there. I think we had decided to take the steam cars from Forest Hills. I had never been at Forest Hills station before; had never taken a train there. As a girl I lived in South Boston all my life, on Eighth Street, and went to school there ; lived there all the year round. Was born there and lived there all my sixteen years. I went about as any child would, in South Boston, and saw what there was to be seen. When I got to Forest Hills I did n’t have any ticket to take the train, and none of my party did, as I know of.”</p> <p>The substance of the evidence in regard to the condition and surroundings of the unfinished stairway is stated in the opinion of the court.</p> <p>At the close of the evidence, the defendant asked the judge to rule that upon the evidence the plaintiff could not recover, and the judge so ruled.</p> <p>By direction of the judge the jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort, under St. 1887, c. 270, for injuries sustained by a freight brakeman while in the employ of the defendant, through the negligence of the engineer of a locomotive engine of the defendant, on which the plaintiff was riding. Writ dated October 13, 1899.</p> <p>At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Tort to recover damages for the loss of life of the plaintiff’s intestate by reason of being struck and run over by one of the defendant’s cars; and also for an assault alleged to have been committed upon the plaintiff’s intestate in being ejected from a car of the defendant by its agents and servants. Writ dated September 28, 1898.</p> <p>At the trial in the Superior Court, before Stevens, J., the plaintiff presented evidence of which the substance is stated in the opinion of the court.</p> <p>At the close of the plaintiff’s evidence, on motion of the defendant, the judge ruled that the action could not be maintained, and ordered the jury to return a verdict for the defendant.</p> <p>The jury returned a verdict as directed ; and the plaintiff alleged exception's.</p> <p>The case was argued at the bar in November, 1900, and after-wards was submitted on briefs to all the justices.</p>

<p>Contract on a judgment obtained in the District Court of Shawnee County, Kansas, Third Judicial District, by the plaintiff, a resident of the State of Missouri, against Edwin E. Wilson, of this Commonwealth, and William B. Johnson, of the State of Vermont, copartners, having a usual place of business in Boston in this Commonwealth. Writ dated August 14,1899.</p> <p>At the trial in the Superior Court, before Hardy, J., the plaintiff offered in evidence a certificate of the proceedings in the Kansas court, but no transcript or copies of any of the papers in the case. It was not contended that any service was made upon the defendants in the original action, but there was an appearance of attorneys for the defendants, as set forth in the certificate; and there was evidence tending to show that the defendant Wilson authorized his attorney to appear for the partnership and look after his interests in the action, and the judge found that' such was the fact. The defendant was not himself present in court at the trial of this action, but there was evidence tending to show that he was in Boston about his business at the time of trial. The certificate of proceedings purported to be attested by the clerk of the above named Kansas court, but was signed “ A. M. Callaghan, Clerk District Court, by J. F. Curtis, Dep. Clerk.” There was also a certificate of the judge of the court that A. M. Callaghan was the clerk of that court, but no certificate or other verification as to J. F. Curtis, who signed the certificate, and no signature or certificate by A. M. Callaghan. There was a third certificate purporting to be by “ A. M. Callaghan, Clerk of the District Court of the Third Judicial District of Shawnee County in the State of Kansas,” that the judge signing the preceding certificate was the judge of that court. This certificate was also signed “ A. M. Callaghan, Clerk District Court, by J. F. Curtis, Deputy Clerk.” These certificates were under the seal of the Kansas court. The certificate of the judge'was as follows :</p> <p>“ State of Kansas, Shawnee County, ss. I, Z. T. Hazen, Judge of the District Court in and for the county and State aforesaid, and of the Third Judicial District, do hereby certify that A. M. Callaghan, whose name is subscribed to the foregoing certificate of attestation, now is, and was at the time of sealing the same, the clerk of said court whereof I am the judge, and the keeper of the records and seal thereof, duly elected, commissioned and qualified as such clerk. The signature to the above certificate is in his handwriting, and said attestation is in due form of law and made by the proper officers. In witness whereof, I have hereunto set my hand, at Topeka in said State and county, this second day of March, 1899. Z. T. Hazen, Judge of the District Court.” The seal of the court was attached.</p> <p>No other evidence was offered at the trial in proof of the judgment. No service was made upon the defendant Johnson, in this action, and the plaintiff discontinued as to him- and was allowed to proceed against the defendant Wilson alone. It did not appear that the defendant Johnson had authorized any appearance for himself in the Kansas suit, but the alleged record recited that the defendants appeared by their attorneys. The alleged decree of the Kansas court was against “ E. E. Wilson and W. B. Johnson, partners.”</p> <p>The defendant objected to the admission of the certificate of proceedings in evidence, but the judge admitted it and the defendant excepted. The defendant requested the judge to rule that upon all the evidence the plaintiff was not entitled to recover.</p> <p>The judge refused so to rule and found for the plaintiff; and the defendant, Wilson, alleged exceptions.</p>

<p>Petition to the Probate Court, under Pub. Sts. c. 49, § 19, for the appointment of a trustee to receive, hold and administer under § 18 of the same chapter the sum paid by the Boston Terminal Company for the taking of a house and land on Cove Place in Boston under St. 1896, c. 516, filed March 28, 1900.</p> <p>The case came before this court on appeal from a decree of the Probate Court dismissing the petition, and was reserved on the pleadings and agreed facts by Hammond, J., for the consideration of the full court.</p> <p>On April 1,1885, the petitioners were the owners in fee of the land and building No. 20 Cove Place in Boston, and on that day executed and delivered to Asa B. Wheeler the following indenture called a lease, duly executed, acknowledged and recorded :</p> <p>“ This Indenture made this first day of April in the year eighteen hundred and eighty five, between Frederick J. Stark and James H. Stark Trustees of the Starks Credit Foncier, pursuant to their Articles of Association which are recorded with Suffolk Deeds in Libro 1056 et Folio 12 et Libro 1206 et Folio 11 of the first part, and Asa B. Wheeler of the City of Brock-ton, Count}’ of Plymouth and State of Massachusetts of the second part Witnesseth, that the said party of the first part doth hereby demise and lease unto the said party of the second part the following described real estate in the City of Boston, County of Suffolk and State of Massachusetts, to wit: A dwelling house and lot of land which is bounded and described as follows, to wit: [Description.] The building on said land being now numbered 20 Cove Place. To have and to hold the same for the term of one hundred years, beginning with the first day of April in the year eighteen hundred and eighty five, yielding and paying therefor rent at the rate of three hundred dollars per annum, to be paid in equal semi-annual payments, the first of such payments to be made on the first day of October next ensuing at the office of the lessors, or of their heirs and assigns in the City of Boston in gold or silver coin of standard fineness, as determined by the present lawful assay thereof, and full weight, and thenceforth on the termination of each succeeding half year until the termination of this lease. And the Lessors hereby covenant with the said Lessee and his heirs and assigns that the said premises are free from all incumbrances done or suffered by them, and that they will warrant and defend the Lessee in the peaceable use and occupation thereof, under the terms of this lease, against all persons claiming by, through or under them but against none others. And the Lessee for himself and his heirs and assigns hereby covenant that he and his heirs, executors, administrators and assigns will pay the said rent in manner aforesaid, and also all taxes, water rates and assessments whatsoever, whether assessed to the Lessors or to the Lessee, to which said premises may become liable during the said term, that they will not make or suffer any strip or waste, or any unlawful use of the said premises, and that they will allow the Lessors and their heirs and assigns, and their agents at seasonable times to enter upon said premises, and examine the condition thereof, and will keep all and singular the said premises in good tenantable repair, and shall keep the buildings thereon insured against fire in the sum of one thousand dollars, and payable to the Lessors or their heirs and as-</p> <p>signs in case of loss, who shall retain such money in their possession until the buildings shall have been repaired in as good condition as they stood before the fire when the Lessors shall pay such insurance money to the Lessee. And the said Lessee for himself and for his heirs and assigns, further covenants with the Lessors and their heirs and assigns, that at the end of the said term of one hundred years herefrom they will peaceably deliver up to the Lessor or his heirs and assigns, the said premises, together with all future erections or additions upon or to the same, in such good and tenantable repair as aforesaid, and vacant and unincumbered and in good tenantable order and condition. And the Lessors for themselves and their heirs and assigns further covenant with the Lessee and his heirs and assigns that at the end of each term of one hundred years from this date, that,at his or their option, they or their heirs and assigns will renew this lease for another term of one hundred years and so on forever on condition that the rent payable under such renewals shall be equal to at least six per cent per annum of the then actual cash value of the leased premises as estimated at the date of each and such renewals and provided further that such annual rents shall never be less than that named in this lease. Provided always and these presents are on the condition, that in case of a breach of any of the covenants to be observed on the part of the Lessee, or of those claiming under him, the Lessors or their heirs or assigns may while the default or neglect continues, and notwithstanding any license or waiver of any prior breach of condition, without any notice or demand, enter upon the premises, and thereby determine the estate hereby created, and may thereupon expel and remove forcibly, if necessary, the Lessee and those claiming under him, and their effects. And I, Kate Stark and Bertha H. Stark, thé wives of the said Lessors, and Mary Stark, widow of John H. Stark late of said Boston, deceased, for one dollar consideration to me paid by the said Lessee, do hereby release the estate of the said Lessee hereby created, from all right to dower or homestead in the leased premises therein described. In witness whereof the said parties hereunto and to another instrument of like tenor, set their hands and seals on the day and year first above written.”</p> <p>. On April 15,1892; Wheeler, the above named lessee, executed and delivered to the respondent Mary A. Mansfield an assignment of the foregoing indenture as follows :</p> <p>“ Know all Men by these Presents, That I, Asa B. Wheeler of Wakefield in the County of Middlesex and Commonwealth of Massachusetts, in consideration of one dollar and other valuable consideration paid by Mary A. Mansfield of Marlboro in said Commonwealth, the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell and convey unto the said Mary A. Mansfield, a dwelling house and lot of land which is bounded and described as follows, to wit: [Description.] And being the same premises conveyed to me by James H. Stark and Frederick J. Stark by deed dated April 1st 1885 and recorded with Suffolk Deeds Libro 1673 Fol. 547, said premises being situated in the City of Boston and Commonwealth aforesaid. To have and to hold the granted premises, with all the privileges and appurtenances thereto belonging to the said Mary A. Mansfield and her heirs and assigns to their own use and behoof forever. And I hereby for myself and my heirs, executors and administrators covenant with the grantee and her heirs and assigns that I am lawfully seized in leasehold of the granted premises, that they are free from all incumbrances except a ground rent of three hundred dollars per annum, that I have good right to sell and convey the same as aforesaid, and that I will and my heirs, executors and administrators shall warrant and defend the same to the grantee and his heirs and assigns forever against the lawful claims and demands of all persons except as aforesaid. And for the consideration aforesaid I, Emma L. Wheeler wife of Asa B. Wheeler hereby release unto the grantee and her heirs and assigns all right of or to both dower and homestead in the granted premises.”</p> <p>Oil November 13, 1892, Mary A. Mansfield mortgaged the house and lot in question to the respondent, Charles J. Mansfield, her son, and on February 20, 1896, leased the same property for eighty-eight years to the respondent, Joanna F. Mansfield, wife of Charles J. All of the instruments mentioned were recorded.</p> <p>Charles J. Mansfield was not in possession of the property as mortgagee, and had only such rights as were given him by his mortgage.</p> <p>The rent was paid to the petitioners by Mary A. Mansfield, under the indenture of April 1, 1885, up to the time of the taking hereafter mentioned.</p> <p>On January 5,1897, the Boston Terminal Company, acting under the provisions of St. 1896, c. 516, took the property for the South Terminal Station, and by agreement of all the parties deposited $9,000, as compensation for the property, to be disposed of according to law.</p> <p>It was agreed that the parties to this proceeding stood in the same relation to this sum as though it had been awarded by a jury as entire damages. The respondents contended that the above named sum should be apportioned as provided by Pub. Sts. c. 49, §§ 20-25.</p> <p>The petitioners filed the following objections to the decree of the Probate Court dismissing their petition : “ 1. They were, at the time of the taking mentioned in their petition, the owners of the property mentioned therein, and the remainder or reversion in fee belonged to them. 2. The respondent Mary A. Mansfield had, at the time of said taking, an estate for years in said property. 3. No other person or persons had, at the same time, any estate or interest in said property. 4. The facts alleged and proved present a case for the appointment of a trustee, as provided in chapter 49 of the Public Statutes, secs. 18,19. 5. The parties cannot agree upon the choice of such trustee.”</p>

<p>In a suit in equity brought to restrain the defendant from selling zithers made in imitation of the plaintiff’s, which were of a certain form and arrangement nnpatented but intended for the use of patented music of which the plaintiff owned the patent, it was held, that the defendant might lawfully sell zithers deliberately copied from the plaintiff’s if he did not represent them to be of the plaintiff’s make, and that the only relief to which the plaintiff was entitled was to have the defendant* ordered plainly to mark the zithers sold by him so as to indicate unmistakably that they were of the defendant’s make and not the plaintiff’s.</p>

Bill in EQUITY brought by the Old Colony Trust Company as trustee representing the holders of the bonds of the Great White Spirit Company, the first named defendant, to foreclose the mortgage and supplemental mortgages securing said bonds, filed June 22, 1899. The’following facts appeared by the bill and answers and were not controverted: The Great White Spirit Company is a corporation existing under the laws of New Jersey having authority to mortgage its property.

Petition to the Probate Court by the executors under the will of Edward Austin, late of Boston, for instructions as to the payment to the treasurer of the Commonwealth of taxes upon certain collateral legacies under St. 1891, c. 425.

<p>In an action brought by a street railway conductor against his employer for an injury caused by the plaintiff coming in collision with a tree at the side of the road while stepping around a superintendent of the defendant on the running-board of an open car, it was held, that the existence of the tree near the track was a permanent condition of the plaintiff’s employment and the plaintiff who had been in the defendant’s service for some time took the risk of the danger from it, and that the presence of a person on the running-board was also an obvious and permanent incident of the plaintiff’s employment of which he assumed the risk, and the fact that such person was a superintendent of the defendant even if he was engaged in superintending at the time was not material, because the superintendence as such did not contribute to the injury.</p> <p>A presiding judge is not bound to rule on the sufficiency of the plaintiff’s evidence to maintain the action until the evidence is closed upon both sides, but he may if he chooses take the case from the jury at any stage of the trial.</p>

<p>In an action for the price of goods sold, it appeared that the defendant agreed to purchase the goods of A. and that the plaintiff bought out A/s business and furnished the goods to the defendant. The defendant declared in set-off alleging that he had bought other goods of A. under a contract by which A. agreed to allow him as great a discount as that allowed to any other customer, and that A. had broken this agreement, and had been overpaid by the defendant the sums which he sought to be allowed in set-off. Held, that even if the novation between the plaintiff and defendant had adopted the terms of the agreement alleged in set-off, it would not follow that a claim founded on the failure of A. to allow the proper discount on sales made by him could be set off against the claim of the plaintiff for the price of goods sold by the plaintiff to the defendant.</p>

<p>In a suit to recover the contract price for a portrait engraving of the defendant made by the plaintiff, it appeared that the defendant signed the following order on a blank furnished by the plaintiff headed by a description of a proposed edition of Gould’s History of Freemasonry : “ Please to execute for me a steel plate engraving from photograph furnished of myself, for which I agree to pay to you or your order the sum of $300 upon the delivery to me of fifteen India-proof impressions from the plate; and I authorize you to copyright, print and insert the number of impressions required in the Portrait Gallery and Biographical Volume of the above named work.” An advertisement .of the plaintiff was put in evidence in which the defendant was named as one of “the brethren whose portraits have already been engraved or are being engraved to appear in Gould’s History of Freemasonry.” There was evidence that the plaintiff published a portrait engraving of the defendant in a book called “Portrait Gallery with Biographical Sketches of Prominent Freemasons throughout the United States ” making no reference to Gould’s History of Freemasonry. Held, that the heading of the blank on which the order was signed was part of the instrument and could be used to show that the defendant gave his order to the plaintiff as publisher of Gould’s History of Freemasonry; that the contract being ambiguous the above named advertisement was admissible as an act of the plaintiff tending to show its meaning; that the plaintiff’s agreement was to publish the defendant’s portrait in Gould’s History of Freemasonry; and that in order to recover the contract price the plaintiff must show that the defendant accepted the publication of his portrait in the book published by the plaintiff in place of a publication in Gould’s History of Freemasonry.</p>

<p>It is not within the scope of the authority of a servant who has charge of property of his master, to inflict personal chastisement upon a person who has injured that property, in order to prevent repetition of the injury.</p> <p>The driver of an ice cart, who strikes a small boy on the head with the handle of an axe, for the purpose of punishing him for breaking the axe, which was the property of the driver’s employer and which lie had left on the sidewalk while going into a house to deliver ice, is not acting within the scope of his employment in making the assault, and the boy cannot recover from the driver’s employer for injuries caused thereby.</p>

<p>Tort for maliciously causing the arrest of the plaintiff in the State of Maine in an action of trover alleged to be groundless. Writ dated June 17, 1899.</p> <p>At the trial in the Superior Court, before Richardson, J., it appeared that the plaintiff and the defendant were lawyers, residing and having their offices in Boston; that in October, 1893, the plaintiff, and one George H. Johnson, a wholesale jeweller, also a resident of Boston, were appointed assignees in insolvency of the estate of one Anthoine, a retail jeweller, witli assets in Massachusetts and Maine; that the defendant was Anthoine’s counsel in the insolvency proceedings and held a mortgage for $600 to secure him for his services in that connection; that after the appointment of the assignees, an agreement was made between them and the defendant, that the defendant should waive his mortgage and allow the assignees to sell the property in both States in consideration of their promise to allow him out of the estate whatever the judge of the Court of Insolvency should decide his services were reasonably worth. Soon afterwards insolvency proceedings were begun in Maine and the plaintiff and Johnson were appointed assignees in that State.</p> <p>In the final account of the assignees as filed in Massachusetts no provision was made for payment of the defendant. The defendant called the attention of the Court of Insolvency to this omission and after hearing he was allowed $100. The defendant appealed from this allowance, and on May 7, 1894, his appeal was entered in the Superior Court for the county of Suffolk.</p> <p>There was evidence that on May 9, 1894, the plaintiff and Johnson were in Auburn, Maine, for the purpose of attending a meeting of the Maine creditors at the Insolvency Court; that on that day the plaintiff and Johnson were arrested on mesne process by a deputy sheriff under a writ issued from the Supreme Judicial Court of the State of Maine, in which the defendant in this case was plaintiff; that the declaration inserted in the writ was a common law declaration in trover, alleging the conversion by the defendants therein of the plaintiff’s property. The soiledule annexed to the declaration contained a long list of articles of the kind usually found in retail jewelry stores. Upon the writ was a special direction to the sheriff by the present defendant’s attorneys, to arrest and hold to bail unless property should be shown. The ad damnum was $800. There was evidence that the plaintiff and Johnson were entire strangers in Auburn and found great difficulty in obtaining sureties on their bond. The law of Maine which permits an arrest of the person on mesne process in actions of tort without affidavit was introduced in evidence, and the defendant admitted that he was familiar with this law, and that he had directed his attorneys to bring an action of trover against the plaintiff.</p> <p>In response to a question by the presiding justice at the trial, the plaintiff’s counsel said that he admitted that the defendant thought he had a claim against the plaintiff and Johnson in contract; but that this claim was at the time of the arrest pending in the Superior Court in Boston and could have been sued in the Massachusetts courts at all times, but the plaintiff’s contention was that the suit in Maine, while connected indirectly. with this contract claim, was not brought in good faith for the purpose of obtaining security or satisfaction of any claim, but was brought for the purpose of injuring the plaintiff. There was no evidence that the suit in Maine had been terminated.</p> <p>The defendant rested upon the plaintiff’s evidence, and the judge thereupon directed the jury to return a verdict for the defendant upon the ground that the plaintiff’s action was one for malicious prosecution and that he failed to show a legal terminatian of the former proceedings.</p> <p>The jury returned a verdict for the defendant as directed; and the plaintiff alleged exceptions.</p>

<p>Contract by the administratrix of a member of a beneficiary association to recover sick benefits under its by-laws. Writ dated December 31, 1898.</p> <p>At the trial in the Superior Court, before Stevens, J., without a jury, it appeared that the by-law sued upon was as follows : “ A member who is not disqualified and who finds himself incapable of working on account of sickness or accident shall receive from L’Union five dollars per week.”</p> <p>The defendant contended that it was not liable under the above by-law because the intestate did not comply with the following by-law: “No sick member can receive benefits from L’Union before three members have visited him, and these visitors have made their report to L’Union, and the member has produced a sworn certificate from a physician.” .</p> <p>The defendant denied its liability on the sole ground that the plaintiff had failed to produce a sworn certificate from her intestate’s physician, as required by the by-law above quoted.</p> <p>It was agreed by the parties at the trial that the plaintiff produced for the defendant a certificate of her intestate’s sickness from his attending physician which was not sworn to by the physician ; that the plaintiff requested the attending physician to give her a sworn certificate, but he refused, assigning as a reason that he had conscientious scruples against furnishing a sworn certificate.</p> <p>The judge found for the defendant, and also found that the failure to produce a sworn certificate was without fault or neglect on the part of the intestate on account of disability from the character of his illness; and at the request of the parties reported the case for the determination of this court. If the finding was wrong, judgment was to be entered for the plaintiff for the amount of her claim ; otherwise judgment was to be entered for the defendant in accordance with the finding of the judge.</p>

<p>It is not evidence of negligence on the part of a street railway company that one of its conductors standing in the middle of an overcrowded ear did not come to the assistance of a woman passenger weighing more than two hundred pounds who was injured while attempting to get through the crowd and alight from the car at a transfer station of the defendant.</p> <p>In an action by a woman passenger to recover for injuries received in falling to the ground while attempting to alight from an overcrowded street car of the defendant, it was held, that evidence that another woman immediately preceding the plaintiff in alighting from the car had her jacket torn as she was pushing her way through the crowd, rightly could be excluded as evidence involving collateral issues and too remote.</p> <p>Semble, that it is the duty of the conductor of a street railway car who is on the rear platform when a passenger is alighting, to see to it that the passenger has an opportunity to alight with safety, and that it is his duty to cause passengers who are blocking the exit to stand aside or even alight from the car temporarily. Per Loring, J.</p> <p>Semble, that passengers who choose to take passage on a street car which is so crowded that tiiey have to stand on tile rear platform or on the steps and thereby block the exit from the car, assume all inconveniences incident thereto, including that of temporarily alighting when necessary to allow a proper exit for passengers who wish to get off. Per Loring, J.</p>

<p>Complaint for keeping intoxicating liquors, with intent unlawfully to sell the same, received and sworn to July 15,1900.</p> <p>At the trial in the Superior Court, before Stevens, J., it appeared that the defendant was a retail druggist at Clinton, licensed as a pharmacist and also holding a liquor license of the sixth class, authorizing him to sell intoxicating liquors for medicinal, mechanical and chemical purposes not to be drunk on the premises. The premises consisted of two rooms, the front room being an ordinary drug store equipped as such. The rear of this front room was somewhat elevated, being reached by two or three steps, and there was what was described as a prescription desk. From the portion of the room so set apart for the prescription desk a door opened into another room in the rear. One corner of this room was partitioned off in the form of a closet. On Sunday, July 15,1900, several police officers entered the premises under a search warrant and found there the condition of things described in the opinion of the court.</p> <p>At the conclusion of the Commonwealth’s evidence, the defendant rested and offered no evidence but submitted the following requests for rulings :</p> <p>1. That upon the entire evidence, the jury are not warranted in finding a verdict of guilty, and the defendant must be acquitted. 2. That there is no evidence to warrant a finding by the jury of any illegal sale of intoxicating liquors. 3. That upon the occasion of the visit of the officers there is no evidence to warrant a finding that any sale of liquors was made by the defendant. 4. That evidence of a sale without competent evidence tending to prove such sale illegal, cannot be taken to the prejudice of the defendant as tending to prove'his guilt on this complaint. 5. That the mere possession of liquors by the defendant is no evidence tending to prove his guilt on this complaint. 6. That under the licenses of the defendant, put in evidence, the defendant had a right to keep and expose liquors for sale, and unless it be proved by competent evidence that the defendant kept such liquors for prohibited or unlawful use he cannot be convicted. 7. That the mere keeping of liquors is no evidence of guilt of the defendant, the government must prove by some competent evidence of sales an unlawful intent of the defendant, and to establish such intent that actual sales by the defendant or some one for whom he is responsible have been made, showing that such sales were made by the defendant actually knowing or believing that the liquors were bought for an illegal purpose. 8. In order to prove that the defendant has made an illegal sale of intoxicating liquor, the government must prove not only that the liquor was really bought for an unauthorized purpose, but also that it was sold by the defendant with guilty knowledge or belief.</p> <p>The judge refused to give the rulings numbered 2, 2 and 3, and among other instructions instructed the jury as follows:</p> <p>That “ the mere keeping of intoxicating liquors by the defendant was no evidence of his guilt, unless they were kept in such a way, under such circumstances, or in such quantities as to be inconsistent with use under his license. That is to say, he had a right to keep liquors on his premises for the purpose of using them under the provisions of his license, but he had not a right to keep them there for any other purpose, and he is guilty under this complaint if you are satisfied that he kept them there for the purpose of illegal sale. He has no right under his license to sell them to people resorting there for a beverage. . . .</p> <p>“ That under the license the defendant had a right to keep and expose liquors for sale upon the premises where they were found, and unless it be proved by competent evidence that the defendant kept such liquors for unlawful use, he cannot be convicted.</p> <p>“ In order to prove that the defendant has made an illegal sale of intoxicating liquors, the government must prove not only that the liquors were bought for an unauthorized purpose, but that they were sold by the defendant with guilty knowledge and belief. That is to say, not only must there have been an illegal intent on his part when he sold the liquors, but there must have been an illegal intent upon the part of the person who purchased them.</p> <p>“ The mere possession of liquors by the defendant is no evidence tending to prove his guilt on this complaint. I have given you that instruction substantially, gentlemen; I give it to you now in connection with that. Unless they are kept in such a manner, in such quantities as to lead you to believe and to satisfy you that they were kept for an illegal purpose.”</p> <p>No exception was taken to the charge except in so far as the instructions to the jury were inconsistent with the defendant’s requests for rulings. To the refusals to give the specific requests asked for, and to the instructions as given inconsistent therewith, the defendant excepted.</p> <p>After the charge of the judge and before the jury retired, the defendant objected to the complaint and record of his conviction going to the jury. The judge thereupon suggested that the jury might consider the case without their taking the complaint or the record of conviction to the jury room. But to this the defendant objected on the ground that the jury could not return a verdict without having the complaint before them in the jury room, and insisted that the complaint must go to the jury. The judge thereupon directed the clerk to paste a paper over the record of conviction of the defendant on the back of the complaint, so that that part of the record could not be read by the jury. To this the defendant objected, but the judge, subject to the exception of the defendant, directed the clerk as above, and the clerk did as directed; and the complaint, with the blank paper pasted over the record of conviction, was delivered to the jury, who took it to the jury room.</p> <p>The jury returned a verdict of guilty ; and the defendant alleged exceptions.</p>

<p>It is not a legal defence to an action on an alleged claim, that the plaintiff has signed an entry of judgment satisfied for a sum less than his claim and also a release of all claims recited to be in consideration of the payment of the lesser sum, and has subsequently refused to receive the lesser sum or to deliver the instruments, and if these facts constitute an equitable defence, that does not deprive a court of equity of its jurisdiction to enjoin the prosecution of the action at law and to order the defendant to deliver the instruments of discharge to the plaintiff.</p> <p>The estate of an intestate amounted to about §5,000. All claims against the estate except one disputed claim amounted to about $700. On the disputed claim a suit was brought for about $15,000. The administrator represented the estate insolvent, and the Court of Insolvency on his petition made a decree ordering a proof of claims under Pub. Sts. c. 137. Thereafter the administrator by a compromise settled the suit on the disputed claim for $200, thereby making the estate solvent. Held, that the administrator had power to make the compromise, and that this power was not taken away by the apparent insolvency of the estate and order of the court for proof of claims, and that the assets of the estate having proved sufficient to pay all claims, it became the duty of the administrator under Pub. Sts. c. 137, § 22, to pay all claims in full; and he was given a decree against the other party to the compromise ordering its enforcement.</p>

<p>Semble, that notice to a creditor of an assignment for the benefit of creditors and a subsequent receipt by the creditor of a check from the assignee purporting to be a final dividend intended to be accepted in full discharge of the creditor’s claim, and use of the check by the creditor, are not enough to show an assent on his part to an agreement of composition, and he may sue for and recover the balance of his claim. Whether the assignee could recover back the amount of the dividend if the creditor repudiated the condition on which it was paid, qucere.</p>

<p>Contract to recover the sum of $222 for services performed by the plaintiff for the city of Lowell when employed as an inspector by the chief of the department of supplies of that city. Writ dated May 20, 1899.</p> <p>At the trial in the Superior Court, before Lilley, J., the following facts were admitted or proved: That Andrew E. Barrett, who employed the plaintiff, was the duly elected, qualified and acting chief of the department of supplies of the city of Lowell under St. 1896, c. 415, § 3, and continued to hold that office up to the time of the trial; that, assuming to act for and on behalf of the city as the head of the department of supplies, he employed the plaintiff as an inspector of supplies, no specific period of employment being agreed upon, and’ promised him for such services the sum of $3 a day, which was a reasonable compensation.</p> <p>The services which the plaintiff was employed to perform are fully stated in the opinion of the court. The plaintiff on February 15,1899, entered upon this employment and performed the services required of him for a period of seventy-four days. At the time of the plaintiff’s employment and at the time of the trial there was a sufficient sum of money appropriated for and standing to the credit of the department of supplies of the city to pay for the plaintiff’s services.</p> <p>Jeremiah Crowley, mayor of Lowell, testified for the defendant, that before the employment of the plaintiff he had an interview with Barrett, the chief of the supply department, in which Barrett informed him, that he intended to appoint the plaintiff as an inspector, and he, Crowley, informed Barrett that in his opinion there was no necessity for any such officer, that Barrett had no right to employ him and that if he did so, he, the mayor, would not sign any pay-roll on which the plaintiff’s name appeared.</p> <p>At the close of the evidence, at the request of the defendant’s counsel, the judge ruled that Barrett, as chief of the department of supplies of said city, was not authorized to make the contract declared on, and directed a verdict for the defendant, and at the request and by agreement of both parties ordered that the case be reported for determination by this court. Pursuant to this order, Lilley, J. having resigned since the trial, the case was reported by Lawton, J. for the consideration of this court. If on all the evidence the judge erred in directing a verdict for the defendant, then judgment was to be entered for the plaintiff in the sum of $222, with interest thereon from the date of the writ. Another question was reported in regard to the exclusion of certain evidence offered by the plaintiff, but the decision of the court has made this immaterial.</p>

Contract by the assignee of a life insurance policy issued by the defendant upon the life of Freeman F. Weatherbee and payable according to its terms to his representatives. Writ dated April 12, 1898.

<p>Contract for the price of certain shoes alleged to have been sold to the defendants. Writ dated October 23, 1899.</p> <p>At the trial in the Superior Court, before Lawton, J., it appeared that the defendants had negotiated with an agent of the plaintiffs for the purchase of the shoes. As a result of these negotiations the shoes were shipped by the plaintiffs from Boston, and on August 9, 1899, were received by the defendants at their place of business in Springfield, Illinois. After the shoes were received by the defendants, it was found that the plaintiffs and defendants had different understandings as to the terms of the purchase, and that if there ever had been a contract it was repudiated by both the plaintiffs and the defendants after the goods were received by the defendants upon their premises. After the repudiation, and while the goods were on the premises of the defendants, there was a correspondence between the parties, which is described in the opinion of the court, in which the plaintiffs offered to sell at a certain price “ spot cash ” with the condition that if the offer was not accepted the goods should be returned immediately. The defendants sent a draft for the price less four per cent. The plaintiffs returned the draft, saying that there was no such deduction from the price and “ if not satisfactory please return the goods to us immediately.” The defendants without replying retained possession of the goods more than a month and then returned them, as more fully stated in the opinion. These facts were relied on by the plaintiffs to prove a sale.</p> <p>The jury returned a verdict for the plaintiffs; and the defendants alleged exceptions, raising the question whether there was evidence of a sale to justify the verdict.</p> <p>The verdict above mentioned was rendered May 23,1900, and on May 24 the defendants filed a motion for a new trial, alleging, 1, that the verdict was against the law; 2, that the verdict was against the evidence and the weight of evidence.</p> <p>The motion was heard May 25, and in support of their first reason for asking for a. new trial the defendants alleged their requests for rulings and the judge’s refusal thereof as shown in the bill of exceptions, and argued the same at length. On June 12, the motion for a new trial was overruled. June 9, the defendants filed their exceptions. At the hearing on the allowanee of the bill of exceptions subsequently to June 12, the plaintiffs objected to the allowance of any bill of exceptions on the ground that the defendants, by alleging and arguing at length, at the hearing on the motion for new trial, the same requests and refusals to rule as set out in the bill of exceptions, had waived their exceptions. The defendants had not been at any time required to elect whether they would rely on their motion for a new trial or on their bill of exceptions, and had not waived their rights to their bill unless on the foregoing facts they must be held to have waived them. The judge ruled that the defendants had not waived their rights; and to this ruling the plain-. tiffs alleged exceptions.</p>

<p>Contract against a fraternal beneficiary corporation to recover |1,000 alleged to be due to the plaintiff under a benefit certificate issued by the defendant to William Leahey, deceased. Writ dated April 14,1899.</p> <p>At the trial in the Superior Court, before Maynard, J., the corporation admitted its liability, and under St. 1886, c. 281, petitioned that Ellen White be summoned in and made a claimant. This petition was -upon motion allowed, and Ellen White duly appeared and claimed the fund.</p> <p>In his original application for membership in the corporation, William Leahey requested that his certificate be issued payable to his wife, Kate Leahey, and on January 30, 1884, a certificate was issued by the corporation to William Leahey, payable to his wife, Kate Leahey. Among other things the certificate contained the provision that it was issued “ upon condition that said Leahey comply in the future with the laws, rules and regulations now governing the said council and fund, or that may hereafter be enacted by the Supreme Council to govern said council and fund.”</p> <p>Kate Leahey died, and thereafter on August 28, 1894, William Leahey surrendered his first certificate, and applied to the corporation for a new certificate, requesting that it be issued and made payable to one Catherine A. Hill, the plaintiff. The corporation on September 8, 1894, issued the benefit certificate sued upon, which was made payable to Catherine A. Hill as dependent friend. The original application for membership and the two certificates of membership and the application for the change in membership were introduced in evidence at the trial.</p> <p>It was admitted at the trial that the plaintiff was not related to William Leahey, nor dependent upon him; that all dues and assessments had been received by the corporation, and that William Leahey was in good standing in the corporation at the time of his decease.</p> <p>The plaintiff introduced in evidence the charter and laws of the corporation which were in force on September 8, 1894. The only portions material were as follows:</p> <p>“ Certificate of Incorporation, Clause fifth ... to establish a benefit fund from which, on the satisfactory evidence of the death of a member of" the Order who has complied with all its lawful requirements, a sum not exceeding five thousand dollars shall be paid to the family, orphans or dependents as the member may direct. ...”</p> <p>Law 119, Beneficiaries to be named. “ Applicant must enter upon the application the full name or names of beneficiaries, husband or wife, child, affianced husband, affianced wife, relatives of or persons dependent upon the applicant whom it is desired to make beneficiaries.”</p> <p>“ 129, Change of Benefit Certificate. Members in good standing may surrender their benefit certificates and have new ones issued subject to the provisions of these by-laws, such change to be made upon petition to the supreme secretary, signed by the member desiring to make the change, attested by the secretary under the seal of the council in accordance with the forms prescribed. Each petition shall fix the time when the change of beneficiary shall take effect, and when no time is stated such change shall take effect on the date of the delivery of the application for change to the secretary of the council.”</p> <p>“ 31, Executive Committee, Duties. The executive committee shall have such powers as the statutes of Massachusetts provide, and perform such duties as the by-laws direct or as shall be from time to time prescribed by the Supreme Council by resolution or otherwise.”</p> <p>The plaintiff further introduced in evidence the laws of the corporation which were in force at the time of the decease of William Leahey, and among these laws was the following : “ 118. In the event of the death of all the beneficiaries selected by the member before the decease of such member, if no other or further disposition thereof be made in accordance with the provisions of these by-laws, the benefit shall be paid to the widow and children of the member in equal shares; if none, then to the heirs of the deceased member, and if no person or persons shall be entitled to receive such benefit it shall revert to the Benefit Fund.”</p> <p>Law 120 prescribed the form of application for a new certificote on surrender of an existing certificate, and was in force both in 1894, at the time of issuing the certificate to the plaintiff, and also in 1898, at the date of Leahey’s death.</p> <p>The plaintiff further introduced evidence tending to show that after the passage of St. 1894, e. 328, incorporated in § 8 of St. 1894, c. 367, which went into effect on April 28,1894, the executive committee of the defendant authorized the supreme secretary to issue new certificates in accordance with the provisions of that law when any member should apply therefor; that William Leahey applied for a new certificate in August, 1894, and on September ’8, 1894, the certificate in suit was issued to him; that at that time the corporation, through its supreme secretary, had knowledge that the plaintiff was neither a relative of nor dependent upon William Leahey, and, further, that at that time Leahey, if he should then decease, had no heirs-at-law; that the defendant was doing business under and in accordance with St. 1888, c. 429, referred to in St. 1894, c. 328.</p> <p>It was admitted and agreed at the trial that William Leahey, at the time of tiis decease, had no heirs-at-law, and that the claimant, Ellen White, had never in any manner been named or designated as beneficiary by William Leahey, and that she was not related to him.</p> <p>At the close of the plaintiff’s case, the claimant offered evidence tending to show: First, that the plaintiff was not a person within the classes entitled under the statutes of this Commonwealth and under the laws, regulations and rules of the defendant order, to be designated a beneficiary in said benefit certificate; Second, that the designation of the plaintiff as beneficiary was made upon an agreement or understanding that the beneficiary should pay the dues or assessments of said deceased member in the defendant order, and that said designation was illegal under the statutes of this Commonwealth ; Third, that the claimant was the sister-in-law of said Leahey, and had been a member of said Leahey’s family for about twenty-five years prior to his death; that the claimant was entirely dependent upon said Leahey for support, and was the only person dependent upon him after the death of his wife; that the claimant was a member of said Leahey’s family, and entirely dependent upon him for support at the time of the alleged designation of the plaintiff as beneficiary, and that the claimant continued to be a member of said Leahey’s family and entirely dependent upon said Leahey for support down to the time of his death; Fourth, that the claimant was the sole legatee and executrix under the will of Leahey.</p> <p>The judge ruled that the evidence offered by the claimant was not competent or material, and excluded it, and ruled that the claimant had no standing in court in this action on either of the grounds claimed, namely, as a dependent or as a legatee.</p> <p>The claimant then moved to amend the pleadings so as to allow her to become party claimant in the capacity of executrix of the estate of William Leahey, deceased, but it appearing that there were no heirs of William Lealiey living at the time of his decease, the judge disallowed the motion as a matter of law on the ground that if she was admitted as claimant defendant, then, as executrix, she would have no standing in court and would not be entitled as executrix to the fund.</p> <p>The judge thereupon ordered a verdict for the plaintiff for $950, that being the amount agreed upon between the plaintiff and the defendant corporation; and the claimant, Ellen White; alleged exceptions. ■</p> <p>The defendant corporation did not claim the fund under its law 118 above quoted or otherwise, and was not represented at the argument.</p>

<p>Tobt against the proprietor of a place of amusement for an assault and battery committed by a special police officer appointed by the city of Boston under St. 1878, c. 244, § 6, on the application of the defendant, and alleged to be in his employ. Writ dated March 16,1895.</p> <p>The defendant was the proprietor of a place of amusement in Boston called the Grand Dime Museum. On his application the Board of Police Commissioners of the city of Boston had appointed one Mead, by whom the assault was alleged to have been committed, a special police officer under St. 1878, c. 244, § 6, to serve without pay from the city. The defendant had given to the city treasurer the bond required by the section named, to be liable to parties aggrieved by any official misconduct of such police officer to the same extent as for the torts of agents and servants in his employment. The section provides that “ proceedings may be had upon said bonds in the same manner as upon the bonds of constables.”</p> <p>At a previous stage of this case, in a decision reported in 171 Mass. 263, this court decided that Mead was not the servant of the defendant. After that decision the plaintiff amended his declaration by adding a second count setting forth the facts about the appointment of Mead as a special police officer and the giving of the bond by the defendant, and alleging that Mead under said appointment and while in the discharge of his.duties as such officer assaulted the plaintiff.</p> <p>At a new trial in the Superior Court, Maynard, J. ruled that on the evidence the action could not be maintained on either count. By his direction the jury returned a verdict for the defendant on both counts ; and the plaintiff alleged exceptions.</p> <p>In behalf of the plaintiff it was argued that a judgment against the defendant was a necessary preliminary to a suit on the bond, while an action against Mead would not be conclusive against either the defendant or the sureties on his bond.</p>

<p>Contract to recover $40 as a commission for procuring a loan for three years upon certain real estate of the defendants. Writ dated October 5,1899.</p> <p>In the Superior Court the case was heard upon agreed facts and judgment entered for the plaintiffs; and the defendants appealed to this court.</p> <p>The agreed facts were as follows: The defendant, Etta E. Quimby, the owner of certain land at Malden, made an application by her husband and agent, Israel P. Quimby, to the plaintiffs to procure a loan of $2,000 upon a mortgage of her property in Malden. The plaintiffs thereupon applied to the Woodlawn Cemetery trustees, and those trustees, by attorney, drew a mortgage deed of the premises to be executed and signed by the defendants. In the mortgage deed presented to the defendants was what is called a gold clause, namely, “ that the principal and interest named in said mortgage should be paid in gold.” Thereupon the defendants refused to execute the mortgage deed, for the sole reason that it contained the gold clause. There was no agreement written or verbal between the plaintiffs and the defendants, at the time of the application for the loan or thereafter, that the mortgage should or should not contain a gold clause.</p> <p>If the plaintiffs were entitled to recover upon the agreed facts, it was agreed that judgment might be entered for the plaintiffs in the sum of $40 and costs; otherwise judgment to be for the defendants with costs.</p>

<p>A school-teacher without paying rent or board lived in a boarding-house kept by her grandmother, whose lease had expired and been extended, assisted her grandmother in keeping the boarding-house, and received from her a bill of sale of the household goods and furniture in the house. It was found as a fact by a judge sitting without a jury, that what the granddaughter did in and about the house was only to assist her grandmother, and that she had never agreed to pay rent and was not a party to any plan to defraud the lessor. Meld, that all requests for rulings as to the liability of the granddaughter for use and occupation of the premises jointly with her grandmother had been made immaterial by the findings of fact.</p>

<p>In this Commonwealth execution can he levied on real and personal property contemporaneously. Whether the levies properly can be made by different officers, qucere.</p> <p>A deputy sheriff seized on execution chattels of a debtor. The next day the debtor made a voluntary assignment for the benefit of creditors. A month later a judge of the Court of Insolvency appointed an assignee in insolvency of the debtor and executed an assignment to him of all the debtor’s property; whereupon the assignee under the voluntary assignment surrendered to the assignee in insolvency all the property of the debtor which had come to his hands and all his rights under the first’assignment. Between the times of the two assignments the deputy sheriff by agreement with the debtor permitted certain of the chattels he had seized on execution to be delivered to customers of the debtor and paid for on delivery, and then seized on execution the money paid by the customers. In an action by the assignee in insolvency against the deputy sheriff for conversion, it was held, that the levy on the money was good against the plaintiff, although the defendant’s permitting the chattels to be turned into money might have defeated the original seizure of the chattels as against the assignee under the voluntary assignment, since the plaintiff’s title rested on the assignment from the judge of the Court of Insolvency and did not date from the previous voluntary assignment which had been superseded and abandoned.</p> <p>An attorney at law to whom one of his clients had made a general assignment for the benefit of creditors on March 30th was asked as a witness whether the assignor had not stated to him during the latter part of March that he did not own certain real-estate levied upon. This was objected to as calling for a privileged communication between attorney and client. Held, that it did not appear that the parties were acting at the time in the relation of attorney and client, as this statement might have been made on March 31st to give information to the assignee in regard to the property covered by the assignment.</p> <p>An exception will not be sustained to the admission of evidence which could not have applied to any question submitted to the jury and therefore could not have harmed the excepting party.</p>

<p>Petition under Pub. Sts. c. 191, to enforce a mechanic’s lien for labor and materials furnished in the construction of an electric light plant in a distillery in Cambridge, under an agreement made between the petitioner, Angier, and the respondent, the Bay State Distilling Company, a corporation organized under the laws of New Jersey. The petition of Angier was filed April 29, 1895.</p> <p>Subsequently two intervening petitions were filed, one by Charles E. Nutter and Alfred H. Seabury, copartners under the firm name of Nutter and Seabury, to enforce a lien for labor and materials furnished in the construction of a system of steam piping in the distillery under an agreement made between Nutter and Seabury and the Bay State Distilling Company; the other by Eugene E. Burnham and Frank G. Page, copartners under the firm name of Burnham and Page, to enforce a lien for labor and materials furnished in covering certain steam pipes, drums, etc., in the distillery with asbestos covering under an agreement made between Burnham and Page and the Bay State Distilling Company. Before the trial in the Superior Court, the petitions of Angier and of Nutter and Seabury were dismissed, and the exceptions related only to the proceedings instituted by Burnham and Page.</p> <p>At the trial in the Superior Court, before Sheldon, J., the report of an auditor was put in evidence. The following statements and extracts are taken from that report-:</p> <p>The buildings constituting the distillery were on the northerly side of Cambridge Street in Cambridge. The land on which they were situated consisted of two lots, the front lot abutting on Cambridge Street and the back lot lying to the north of the front lot and adjoining it. The buildings stood' partly on the front lot and partly on the back lot. " The line dividing the lots passed through the buildings. There was nothing on the land or in or upon the buildings to indicate where this line ran. A full description of the front lot was contained in the petitions. In each petition a lien was claimed only on the front lot and the buildings and structures thereon, though in each case a portion of the labor and materials were performed and furnished in the buildings situated on the back lot.</p> <p>The report then stated the record title to the lots, showing that at the times when the contracts were made and the labor and materials performed and furnished, the front lot belonged to the Bay State Distilling Company and the back lot to one Richard C. Sibley, both lots having been subsequently conveyed to the Great White Spirit Company.</p> <p>In the matter of the petition of Burnham and Page the auditor found the following facts:</p> <p>“On November 27, 1894, the petitioners and the respondent, The Bay State Distilling Company, through its agent, one Breden, having authority, made a written agreement, by which the petitioners agreed to furnish certain asbestos and magnesia covering for the system of steam piping in the respondent’s distillery and the respondent agreed to pay therefor.”</p> <p>The offer of Burnham and Page, which was accepted by the Bay State Distilling Company and became the contract, was as follows:</p> <p>“As requested by your Mr. Breden, we take great pleasure in quoting you the following prices for steam-pipe and boiler covering as per specifications rendered our salesman:</p> <p>“We agree to do all such work up to ten-inch with our asbestos and magnesia sectional covering for three hundred and sixty dollars, ($860.00). On all other work we will allow you 10 % from the enclosed list. On all cement work we will charge you twenty cents per square foot.”</p> <p>The specifications signed by Breden as architect and engineer of the Bay State Distilling Company contained the following:</p> <p>“ Covering for two drums over boilers, 2 nozzles, 2 angle valves, 12 drum ends in front and back of boilers. The drums and 12-inch pipe covered with plastic, the remainder of piping with sectional covering.</p> <p>“ The main line of pipe in at this date from boilers out through buildings, ending at first two large wooden tanks in fermenting room, direct steam pipe from boilers to 4 pumps in engine room, and to engine now up and in use, and to three pumps in kettle room, and 2 copper stills in kettle room, also direct steam pipes from old boilers to engine, and pumps in kettle room, as follows:</p> <p>[Details of valves, tees and ells.]</p> <p>“Also price per linear foot for each size of pipe mentioned with price for valves, tees and ells furnish a sample of your, covering with your bid.”</p> <p>The auditor’s report continued as follows: “ Shortly thereafter the petitioners began the work called for by said agreement which they completed on February 16, 1895, on which date they ceased to furnish labor and materials. I find that the petitioners fully performed that part of their work described in the specifications, for which they were to receive the lump sum of $360, and that the respondent became indebted to them in that sum. I find further that other labor and materials not included in said specifications were furnished by the petitioners under the direction of said Breden, and that under the provisions in the agreement relating to such additional work and fixing the price thereof the respondent became indebted to the petitioners for said other work and materials in the sum of $335.10.</p> <p>“ I find that part of the labor and materials furnished by the petitioners were furnished on said front lot, on which this lien is claimed, and part on said back lot, and that of the labor and materials furnished on the front lot part were furnished under the provision in the contract calling for the payment of a lump sum of $360, and were those described in the written specifications, and part were furnished under the provisions in the agreement relating to the price to be paid for 1 other work ’ and ‘ cement work.’ The same is true as to the labor and materials furnished on the back lot. The testimony did not show either as to the front or back lot what parts were furnished under each of the different provisions of the agreement.</p> <p>“I find that of the total amount of labor and materials furnished by the petitioners nine tenths were furnished on the front, lot and one tenth on the back lot.</p> <p>“ The steam pipe covering put in by the petitioners was of two kinds, called in the trade ‘ sectional ’ and ‘ plastic.’ The sectional covering was made by the petitioners at their factory and brought from there, or from their storehouse, in crates, to the distillery, where it was applied to the pipes by the petitioners’ men. It came in three-foot sections or lengths, of different diameters for the pipes, and in shapes made to fit valves, elbows and tees of different sizes. They were not made specially for this contract but were kept in stock in sizes up to and including a diameter of ten inches. The inside of the covering is composed of asbestos, magnesia and calcite, forming a compact mass something like plaster but not as hard. Outside of this and around it paper felt is pasted, and outside the paper is pasted a covering of canvas. The whole covering is about one and an eighth to one and a quarter inches in thickness. The sections came to the distillery split in two parts held together by the canvas cover. They were placed around the pipes and fastened thereto by brass lacquered bands which were passed through rings and clasped back. Then the canvas, which lapped over like the flap of an envelope, was pasted down. The covering was made to ‘ hug the pipes ’ rather tightly. The covering of the elbows and tees was put on in the same way as that of the pipes.</p> <p>“ If material, I find that the sectional covering, after being applied, can be removed by unclasping the bands and pulling up the edges where they are pasted down, but that the discoloration caused by contact with pipes, paste, handling, etc., and the cutting of the sections, when applied, to make them fit the elbows and tees, would very seriously impair, if not wholly destroy, the commercial value of the covering after removal.</p> <p>“ The plastic covering, which was used for pipes and other work exceeding ten inches in diameter, was brought to the distillery in bags and there mixed and applied with trowels in the same manner as plaster. It can be removed by knocking it off with a hammer or similar tool.</p> <p>“ Of the covering furnished according to specifications and for a fixed price approximately one half was plastic and one half sectional. Of the other covering furnished, that stated in items 12 and 13 of the petitioners’ account, having a value of $55.80 according to the price named in the agreement, was plastic and the remainder sectional.</p> <p>[The petitioners as above stated ceased to furnish labor or materials on February 16, 1895.]</p> <p>“ The certificate of lien was duly filed by these petitioners in the Registry of Deeds for the County of Middlesex on February 28,1895. On May 14, 1895, they filed a petition to enforce their lien in the Third District Court of Eastern Middlesex. On July 3, 1895, after service on them of notice of the petition of Angier, they filed this intervening petition to enforce their lien. By writ dated February 23, 1895, returnable into the Superior Court at Salem in the County of Essex, on the first Monday of April, 1895, these petitioners brought an action of contract against the respondent, the Great White Spirit Company, to recover the value of the labor and materials for which a lien is claimed in this petition and attached all the real estate of said Great White Spirit Company in the southern district of said County of Middlesex. The ad damnum of this writ was fifteen hundred dollars. By the return of the officer on said writ it appears that the attachment was made February 23, 1895, and that within three days thereafter the officer deposited a certified copy of the writ with so much of his return indorsed thereon as related to said attachment in the Registry of Deeds for the Southern District of said County. Said action is now pending.</p> <p>“ The answer to this petition is a general denial. The defences raised are: 1. That the labor and materials for which the lien is claimed were not furnished and used in the ‘erection, alteration or repair of a building or structure situated upon real estate ’ within the meaning of the statute. 2. That the attachment made as aforesaid in the action at law brought against the respondent, the Great White Spirit Company, operated as a waiver of the lien. 3. That part of the labor and materials having been furnished for a fixed price, on two lots of land, only one of which was owned by the respondent, the Bay State Distilling Company, with whom the contract was made, there can be no lien for that part so furnished on said respondent’s lot, because the contract cannot be divided; and that there can be no lien for the labor and materials furnished according to the contract and price list at so much per foot or piece because it is not shown what part of said labor and materials were furnished on said respondent’s lot, on which the lien is claimed. 4. That although the petitioners may have filed a petition to enforce their lien in said Third District Court within ninety days after they ceased to furnish labor and materials, they canhot enforce their lien on this intervening petition because it was not filed within said ninety days.</p> <p>“ Subject to the revision of the court I find in favor of the petitioners on each of the above points. I therefore find that these petitioners are entitled to a lien on the land and buildings described in their petition, the front lot, for that part of the whole amount of labor and materials furnished by them which were furnished and actually used on said front lot, namely for six hundred twenty-five dollars and fifty-nine cents, with interest from May 14, 1895, when their petition was filed.”</p> <p>The following additional facts were agreed at the trial: That items 12 and 18 of the petitioners’ account annexed, amounting to $55.80, being “plastic work” so called, were all furnished upon the front lot; and that the title of the said front lot remained in the Great White Spirit Company continuously from the time of the conveyance to that company stated in the auditor’s report down to the time of the trial, except that the land was included in a mortgage made by that company.</p> <p>The respondents asked for the following rulings: 1. That on all the evidence the petition could not be maintained. 2. That the “sectional covering” so called was not furnished or used in the erection, alteration or repair of a building or structure within the meaning of Pub. Sts. c. 191, § 1. 3. That if before beginning these proceedings the petitioners caused the real estate upon which this lien was sought to be established, to be attached in an action at law brought to recover for the same labor and materials, which action remained pending down to the time of the trial, their lien was thereby waived and this petition could not be maintained. 4. That if the petitioner furnished labor or materials partly on the lot described in the petition and partly on the back lot.not described therein under a single contract for a lump sum on one building situated partly on the one lot and partly on the other, a lien cannot be enforced on the lot described in the petition alone, either for the whole or a part of the contract price. 5. That the petitioners’ lien cannot be enforced in these proceedings, this intervening petition not having been filed within ninety days of the time when the petitioners ceased to labor.</p> <p>The judge refused to make any of these rulings and established the lien of the intervening petitioners for the sum of $804.40.</p> <p>To this order and to the refusal of each of their requests for rulings the respondents alleged exceptions.</p>

<p>Petition by the lessees of Hobbs Wharf in Boston for the assessment of damages alleged to have been suffered from the taking of that wharf by the respondent under St. 1896, c. 516, filed May 5, 1897.</p> <p>At the trial in the Superior Court, before Blodgett, J., it appeared, that the petition was brought by the lessees alone, William W. Manning and S. Welles Holmes, trustees, the lessors and owners of the wharf having made a settlement with the respondent. The respondent expressly waived all objections to the non-joinder of the owners in the suit, and by the agreement and at the request of all parties the case was tried as if the only persons interested in the taking were the petitioners. It was admitted that the fee of Hobbs Wharf was taken by the respondent on January 5,1897, under St. 1896, c. 516, by a location filed on that day in the Suffolk Registry of Deeds.</p> <p>From May 1, 1862, the present and former members of the firm of W. H. and S. L. Emery had been tenants and lessees of the premises taken by the respondent. Their leases usually ran fog- two or three years, and from time to time as the leases terminated they were renewed or extended or a similar new lease was given, so that during the whole period of their occupancy they held the premises on substantially the same terms. The testimony further tended to show that, irrespective of any covenant to renew, it was the intention of both the landlord and tenants to continue their relations on the same terms indefinitely. On the expiration of the then existing lease on April 20,1894, the owners of Hobbs Wharf gave the petitioners a new lease of the premises for one year from May 1,1894, with the right to extend and renew the same for one additional year. The original lease and the indorsements thereon were put in evidence. On February 1, 1895, the lease of April 20,1894, was renewed and extended for two years from May 1, 1895, by a writing indorsed on the lease. Before' the last term expired there were some negotiations between the parties contemplating an extension or renewal of the lease, and some time during the week prior to Christmas, 1896, one of the petitioners called upon Holmes, mentioned above, the managing trustee of Hobbs Wharf, in regard to extending their lease from May 1, 1897. He was asked by the attorney for the petitioners to state the conversation that then took place in regard to the extending of this lease from May 1,1897, the petitioners claiming that the evidence would show that in this conversation their lease of Hobbs Wharf was renewed and extended upon the then existing terms for one year from May 1,1897, to May 1,1898. Upon objection of the respondent the judge excluded the evidence, to which ruling the petitioners excepted.</p> <p>The following indorsements were upon the lease:</p> <p>“The Lessees to have privilege of renewing within lease, on same terms, for one year from May 1st, 1895, if notice is given Lessors, on or before 1st February, 1895. William W. Manning and S. W. Holmes, Trustees.”</p> <p>“ Boston, February 1, 1895.</p> <p>“ Within lease renewed for two years from May 1st, 1895, on same terms. S. W. Holmes, for Self and Co-Trustee.”</p> <p>Holmes testified that subsequently, to wit, on January 8,1897, he wrote a letter to the petitioner confirming the previous paroi extension of the lease and identified the letter he had so written. The petitioners offered this letter in evidence, and upon objection of the respondent the judge excluded it, the letter having been written after the taking. To this ruling the petitioners excepted. The letter excluded was as follows:</p> <p>“ S. Welles Holmes, Room 5, 45 Broad Street, Boston. Boston, 8th Jan’y, 1897. Messrs. W. H. & S. L. Emery, Boston. Dear Sirs, — Your favor of 2d inst. duly received. According to the terms of the lease of Hobbs Wharf we have extended said lease for one year from May 1,1897. Yours very truly, S.Welles Holmes, for Self and Co-Trustee.”</p> <p>Holmes further testified that in the November before the taking he had some negotiations with a representative of the Terminal Company, in which he informed him that the Emery lease which would expire the following May was to be renewed for an additional year to May 1,1898, and he made an agreement in writing with the Terminal Company to sell them Hobbs Wharf subject to the Emery lease thus extended. This agreement was identified and offered in evidence, but upon the respondent’s objection was excluded. To this ruling the petitioners excepted.</p> <p>The agreement excluded was dated November 25,1896, and contained the following : “ Said premises are to be conveyed on or before the twenty-sixth day of December, 1896, by a good and sufficient trustees’ deed of the party of the first part, eon^ veying a good and clear title to the same free from all incumbrances, except a certain lease expiring May 1, 1897, with privilege to the lessee of one additional year from that date ; all buildings and fixtures of which tenants have right of removal are excepted from this agreement, and for such deed and conveyance the party of the second part is to pay the sum of four hundred and thirty thousand dollars ($430,000). If this property is taken by right of eminent domain before the sale is consummated, the price agreed shall be the damages paid.” An indorsement showed the time of performance of the agreement to have been extended to January 15, 1897.</p> <p>Holmes also testified that he and his co-trustee had executed a deed of the property to the Terminal Company dated December 22,1896, and acknowledged, delivered and recorded January 18, 1897, which deed was offered in evidence and admitted against the respondent’s objection.</p> <p>At various times, for the purpose of carrying on their trade as dealers in wood and coal, the petitioners had erected sheds and fitted up the premises with the fixtures and appliances necessary and proper to enable them to carry on their business, all of which sheds and fixtures they had the right to remove at any time that they themselves left the premises.</p> <p>One Ellis, a carpenter and contractor, familiar with the Hobbs Wharf property, testified that it was not possible to remove these sheds as they then stood except by tearing them to pieces and rebuilding them, which was not practicable; that there were two hoisting machines consisting each of a large mast and boom with ropes, pulleys, etc., worth about $1,500 each, on January 5, 1897, and that they were affixed to the wharf, and that it would have cost $500 each to remove them.</p> <p>William Emery, one of the petitioners, testified that on January 5, 1897, his firm had been served by the respondent with a notice to move, the notice itself being put in evidence, and that it had taken them about three months to remove in an economical and practical manner the coal which at that time was upon the wharf, and that they were not able to remove the sheds within the time allowed. He also gave figures showing the cost of removing the coal from Hobbs Wharf to a new wharf rented by them, and that they had finally removed from Hobbs Wharf on April 5, 1898, having paid no rent since January 5,1897.</p> <p>One Wead, a real estate dealer, called by the petitioners and duly qualified as an expert on real estate and rentals, was asked, “ Assuming it to be a fact that it was the custom of the owners of Hobbs Wharf to renew the leases of the firm of W. H. & S. L. Emery from time to time as they expired, irrespective of any covenant to renew, in your opinion would the present leasehold of the petitioners have an enhanced value imparted to it by reason of the expectancy of the renewal of the present lease according to such custom ? ” This question, on the respondent’s objection, the judge excluded, and the petitioners excepted.</p> <p>Wead was further asked: “ Assuming that when there is a custom for the landlord to renew the leases of the tenants from time to time as they come due, even in the absence of covenants of renewal it gives an ulterior interest beyond the subsisting term to the tenant called the ‘ Tenant Right.’ Assuming that such a ‘ Tenant Right ’ existed in the present petitioners in relation to Hobbs Wharf, in your opinion would such a 6 Tenant Right ’ enhance the value of the petitioners’ property taken by the respondent ? ” This question, on the respondent’s objection, the judge excluded, and the petitioners excepted.</p> <p>He was further asked: “ Assuming it to be a fact that the petitioners are the tenants of the property described in the proceedings in this case, and that the lease of land had been renewed from time to time for a great number of years, and that the tenants made valuable improvements upon the property, relying upon a renewal of their leases, and that it was the intention of the landlord and the petitioners to renew said lease from time to time, in your opinion would any additional marketable value be imparted to the petitioners’ interest by reason of the probability of the renewal of said tenancy?” This question, on the respondent’s objection, the judge excluded, and the petitioners excepted.</p> <p>He was further asked: “ What in your opinion is such additional market value worth ? ” This question, on the respondent’s objection, the judge excluded, and the petitioners excepted.</p> <p>The petitioners requested the judge to instruct the jury as follows : 1. As between the petitioners and the respondent the extension of the lease to May 1, 1898, was valid and binding, to grant a leasehold for that period without being in writing. 2. The defence of the statute of frauds to the extension of the lease to May 1, 1898, is not open to the respondent. 3. The letter of January 8, 1897, from Mr. Holmes, is a sufficient note or memorandum of the extension of the lease from May 1,1897, to May 1,1898, to satisfy the statute of frauds. 4. By the oral agreement, and the letter of January 8, 1897, the petitioners held a leasehold estate in the premises taken by the respondent until May 1, 1898. 5. The petitioners had a valid enforceable</p> <p>lease of the premises in question in this suit extending until May 1, 1898. 6. When there is a custom for the landlord to renew the leases of the tenants from time to time as they come due, even in the absence of covenants of renewal it gives an ulterior interest beyond the subsisting term to the tenant which is called the “ Tenant Right.” If, therefore, the jury find that it was the custom of the owners of Hobbs Wharf to renew the leases of the firm of W. H. and S. L. Emery from time to time, then in estimating the value of the present leasehold, irrespective of covenants of renewal, the jury may make a reasonable allowance to the petitioners for their tenant right or expectancy of renewal. 7. If the 'jury find from the evidence that the petitioners are the tenants of the property described in the proceedings in this case and that the lease of land had been renewed from time to time for a great number of years, and that the tenants made valuable improvements upon the property relying upon a renewal of their leases, and that it was the intention of the landlord and the petitioners to renew said lease from time to time, then the-jury in estimating the damages sustained by the petitioners may take into consideration the additional marketable value, if any, imparted to the petitioners’ interest by reason of the probability of the renewal of said tenancy, provided the jury make proper allowance for the precarious nature of such expectancy. 8. The petitioners are entitled to receive as damages from the respondent a sum to compensate them for injury to their business, the loss of the earnings and profits, for the period that the business was temporarily suspended or interrupted by removing from the Federal Street place to another location.' 9. The petitioners are entitled to recover in damages the expenses of the removal of their property taken by the respondent to the other place they secured for their business. 10. The petitioners are entitled to recover as damages for the loss of the tenant fixtures which were taken from them, together with damages for any depreciation in those tenant fixtures which they were able to remove with them.</p> <p>The judge refused to make the rulings requested, and instructed the jury among other instructions, as follows: “I instruct you in this case that in the assessment of damages you will proceed upon the assumption that the petitioner’s lease would have ended, had there been no taking whatever, on the 1st day of May, 1897, and you cannot take into consideration any oral agreement, or understanding or usage between the parties as to extending or renewing the lease. . . .</p> <p>“ Certain sheds or buildings were erected upon this wharf, and certain elevators. Now, it is conceded by everybody that those were treated from first to last as tenant’s fixtures. It is not entirely certain that they ever became fixtures in any sense; but, assuming for the purpose of the trial, and I do so instruct you, that they were tenant’s fixtures,1 the petitioners had the right to remove those fixtures at anytime before the termination of their lease. They had the right to remove them at any time before the 1st day of May, 1897, if they cared to remove them. If they did not choose to remove them during that time, and had not the consent of the owners to remove them afterwards, they would become the property of the owners of the real estate, and would be treated as real estate. Now, I instruct you that these petitioners had the right to remove those fixtures at any time within three months after the taking. You will observe that the time within which they could remove the fixtures was abridged by twenty-five days ; and the petitioners are entitled to recover, in addition to the damage to which I have already called your attention, whatever damage you say upon all the evidence in the case was sustained by reason of the fact that the time within which they might remove the fixtures was lessened by twenty-five days from what it would have been had they held possession until the termination of the lease by its own limitation. . . .</p> <p>“ I said to you, gentlemen, that the petitioners were required to remove those fixtures within three months. If they did not remove them within three months after the taking, they lost all right to remove them; and you are not to give them damages for such as they did not remove, but you may consider what damages the petitioners sustained because they were unable to remove their fixtures, inasmuch as the time within which they would have had the right to remove them was cut down by twenty-five days.”</p> <p>The jury returned a verdict for the petitioners in the sum of ¡1248.85 ; and the petitioners alleged exceptions, which, Blodgett, J., having resigned, were allowed by Mason, C. J., under St. 1894, c. 412.</p>

<p>The almoner of Chicopee is not a judicial officer.</p> <p>The civil service commissioners have power to require offices involving confidential relations between the incumbent and his superior, which are not by statute exempted from their rules, to be filled under the rules, or so may classify them that they will be free.</p> <p>The almoner of Chicopee, appointed annually by the overseers of the poor of that city, is not a head of a principal department, and his appointment is subject to the rules made by the civil service commissioners.</p> <p>Semble, that the overseers of the poor of the city of Chicopee are heads of a principal department and as such exempted from classification under the civil service laws.</p>

<p>The selectmen of a town, in a vote to widen and straighten a certain road which crossed a railroad, described the limits of the new road until it reached the railroad, then beginning again on the other side of the railroad described the limits of the road beyond, and then declared “all portions of the old road not included to be discontinued.” Held, that the highway was not discontinued where it crossed the railroad but in that part remained unchanged.</p> <p>Upon the issue whether a certain way is a public way the records of the county commissioners dealing with the way as a highway or town way are admissible in evidence.</p>

<p>St. 1899, c. 457, limiting the height of buildings within a certain described territory west of the State House in Boston to seventy feet, and providing that “ If and in so far as this act, or proceedings to enforce it, may deprive any person of rights existing under the Constitution,” the owners of the land thus restricted may have their damages assessed by a jury, does not cpntain an adjudication that the public welfare requires that the landowners’ property should be restricted without compensation to them, and, without such adjudication by the Legislature, the statute does not deprive the landowners of their rights to compensation for the taking of their right to build above seventy feet. Whether a clear expression by the Legislature of its intent to restrict these buildings in the exercise of its police power without compensation to the owners would infringe the Constitution, gucere.</p>

<p>Two bills in equity to recover alleged secret profits of the defendants as promoters and directors of the plaintiff, a corporation organized under the laws of Tennessee, filed May 31, 1895.</p> <p>The suit was originally brought by the receiver of the plaintiff and was before this court in Hayward v. Leeson, 176 Mass. 310, in which it was decided that the suit should have been brought by the corporation instead of by the receiver and the following decree was made, which appears in the last paragraph of the opinion in that case: “ Upon substituting the East Tennessee Land Company as plaintiff in place of John K. Hayward, the causes are to stand for hearing as to what the net profits are, which the defendants have respectively received, or as to what the damages are, which the plaintiff has suffered, as the plaintiff shall elect to proceed for the property or its proceeds on the one hand, or for damages on the other hand. Decree accordingly.”</p> <p>On October 26,1900, in accordance with the foregoing decree, the bill was amended by substituting as plaintiff the East Tennessee Land Company in place of John K. Hayward, receiver. On November 5, 1900, in pursuance of a verbal notice given at the time when the plaintiff’s amendment was allowed, the defendant Leeson filed a motion for leave to amend his answer by setting up the defence of the statute of limitations in bar of the plaintiff’s bill, as follows : “ And defendant comes and answers that the cause of action mentioned in plaintiff’s bill in equity did not accrue within six years before the suing out of said bill by East Tennessee Land Company as plaintiff, and said bill cannot be maintained by said land company as against this defendant for this reason.”</p> <p>At the hearing in the Superior Court, before Braley, J., it was agreed by the parties that, at the time the bill was filed, May 31, 1895, the cause of action was not barred by the statute of limitations. The defendant contended that the cause of action accrued in 1893, and that the substitution of the East Tennessee Land Company as plaintiff for John K. Hayward, receiver, the original plaintiff, was such a change as to entitle him as matter of law under the facts to plead the statute of limitations in bar of the maintenance of the bill, more than six years having elapsed from the time when the cause of action accrued to the date of the allowance of the amendment.</p> <p>The judge refused so to rule, and ruled that the appointment of a receiver did not have the effect of changing the right of action or the contractual or fiduciary relations existing between the East Tennessee Land Company and Leeson, as set out in the bill, and that the right of action was that of the corporation, and that the bill as it originally stood was only an attempt on the part of the receiver in his own name to enforce that right; and refused to allow the amendment as a matter of law and not as a matter of discretion; and being of the opinion that the matter ought to be determined by the full court before further proceedings were had in the trial court, at the request of the defendant, reported the ruling and order for the consideration of this court. If the ruling was right the order was to be affirmed ; if not, then the defendant’s amendment was to be allowed.</p>

<p>When a contractor agrees in writing to erect a building to the satisfaction of the agent of the owner of the land, and erects the building in substantial conformity with the contract but not to the satisfaction of the agent, he can recover on an account annexed the value added to the land by his work and materials, and in many cases this value may be ascertained by deducting from the contract price the amount of diminution of the value of the building by reason of the contractor’s deviations from the contract.</p> <p>A building contract contained a provision that “No alterations shall be made in the work shown or described by the drawings and specifications, except upon a written order of the owner, and when so made, the value of the work added or omitted shall be computed by the architect, and the amount so ascertained shall be added to or deducted from the contract price.” Held, that the contractor could recover for extra work done upon oral orders of the agent of the owner given with the owner’s consent and authority, the requirement of a written order being waived.</p> <p>The specifications of a building contract contained under the title “Iron Work" the following: “Provide and build in three ornamental balconies on front as shown, securely bolted to the wall, of the value of $300.” The contractor sought to recover the price of the above described balconies as extra work performed outside of his contract, and offered to show that it was agreed by both parties when his contract was made, that the balconies should not be included in his estimate and that they were not included in the contract price, but that afterwards the owner changed his mind and ordered the balconies built. Held, that a ruling excluding this evidence was right, the offer of it being an attempt to vary the terms of a written contract by oral evidence. Held, also, that in a provision of the contract that the building was “ to be completed according to the specifications and drawings (except such work as is reserved to be done by the owner) on or before” a certain day, the expression work “reserved to be done by the owner” meant work thus reserved by the specifications, and did not open the way to the introduction of oral evidence.</p>

<p>Petition by the metropolitan park commissioners under St. 1899, c. 419, for the appointment of commissioners to determine and make award of the proportions in which each of the cities and towns within the Metropolitan Parks District shall annually pay money into the treasury of the Commonwealth for the first period of five years, to meet the interest and sinking fund requirements and provide for the expenses set out and referred to in § 1 of that act, filed March 26, 1900.</p> <p>Under this petition apportionment commissioners wei'e appointed by a decree made by a single justice of this court.</p> <p>The apportionment commissioners after several hearings made and returned to the court their determination and award.</p> <p>The case came on for hearing before Barker, J., on a motion of the Attorney General for the acceptance of this determination and award, a motion of the town of Brookline for a recommittal of the award to the apportionment commissioners, and a motion to dismiss and an answer of the town of Westwood, in which that town alleged that it was not a part of the Metropolitan Parks District and was not liable to apportionment under the statute.</p> <p>After hearing, the justice denied the motion for recommittal, and ordered a decree to be entered accepting the award.</p> <p>The town of Brookline appealed to the full court from the order denying the recommittal, and the towns of Brookline and Westwood also appealed from the decree accepting the award, and at the request of both towns the justice reported the case for the consideration of the full court.</p> <p>A table annexed to the report prepared for the apportionment commissioners, and used by them in making up their award, stated the amounts required annually, as estimated by the State treasurer, to meet the sinking fund, interest and maintenance charges of the various loans, and gave the valuations of the various cities and towns in the district, the percentages and amounts which each would pay if assessed on the basis of valuation, and also the population of the various cities and towns, and the percentages and amounts which each would pay if assessed upon the basis of population, and the mean percentage of valuation and population of the various cities and towns, and the amounts which the various cities and towns would pay if assessed upon the basis of the mean percentage of valuation and population.</p> <p>A paper prepared by the metropolitan park commissioners at the request of the apportionment commissioners was put in evidence before the apportionment commissioners, which showed the area in acres, and the approximate expense paid or incurred in the acquirement of the various park reservations, and also the approximate expense paid or incurred by the metropolitan park commission for the metropolitan parkways and boundary roads.</p> <p>At the hearings before the apportionment commissioners it was admitted that in 1895 the population of that part of Dedham which is now Westwood, was 980, and the population of Dedham as it now exists geographically was then 6,231. It was also admitted that at the time the town of Westwood was incorporated the valuation of that part of Dedham which is now Westwood was $925,000, and that the valuation of Dedham as it now exists geographically was then $7,857,541.</p> <p>At the hearings before the apportionment commissioners the following requests for rulings were made by the town of .Brook-line : 1. That a determination of the special benefits received by the various towns and cities from the various reservations and boulevards should be one of the elements in the apportionment. 2. That population and valuation should be taken into account in the apportionment.</p> <p>At the same hearings the following requests for rulings were made by the town of Westwood: 1. The town of Westwood is not a part of the Metropolitan Parks District. 2. The town of Westwood is not liable to apportionment under these proceedings. 3. This petition cannot be maintained against said town.</p> <p>The apportionment commissioners were Charles Francis Adams of Lincoln, Thomas M. Stetson of New Bedford and John C. Hammond of Northampton. They filed a report with tables appended in which were set against the cities and towns in the Metropolitan Parks District, including the town of Westwood, the percentage proportions which the commissioners found to be just and equitable respectively for each, but did not state the basis upon which their apportionment was made.</p> <p>Section 3 of St. 1893, c. 407, establishing the metropolitan park commission, is as follows : “ The jurisdiction and powers of said board shall extend to and may be exercised in the cities of Boston, Cambridge, Chelsea, Everett, Lynn, Malden, Med-ford, Newton, Quincy, Somerville, Waltham and Woburn, and in the towns of Arlington, Belmont, Braintree, Brookline, Canton, Dedham, Dover, Hingham, Hull, Hyde Park, Melrose, Milton, Nahant, Needham, Revere, Saugus, Stoneham, Swampscott, Wakefield, Watertown, Wellesley, Weston, Weymouth, Winchester and Winthrop; which cities and towns shall constitute the Metropolitan Parks District.”</p> <p>Section 5 of St. 1897, c. 226, incorporating the town of West-wood, begins as follows: “Said towns of Westwood and Dedham shall each retain and hold all the town property, real or personal, now in or belonging to their respective limits. And the town of Westwood shall assume .and pay its just and equitable proportion, according to its present assessed valuation, of any debt due or owed from the town of Dedham at the time of the passage of this act, including its proportion of any obligation on the part of the town of Dedham for the expenses of the metropolitan parks and the metropolitan sewers, until a new apportionment is made concerning the same.”</p> <p>Section 1 of St. 1899, c. 419, providing for apportionment commissioners, is, as follows: “ In the year nineteen hundred and in every fifth year thereafter the supreme judicial court in equity, on application of the metropolitan park commission or of the attorney-general, or of any city or town of the metropolitan parks district by its attorney, and after such notice as the said court may order to each city atid town of that district, shall appoint three commissioners, neither of whom shall be a resident of any city or town in said district, who shall, after such notice and hearing as they deem sufficient and in such manner as they deem just and equitable, determine and make award of the proportions in which each of the cities and towns of said district shall annually pay money into the treasury of the Commonwealth, beginning with the first day of January of the year in which such commissioners are required to be appointed, until the first day of January of the year in which a new award is made hereunder, to provide the amount for that year as estimated by the treasurer of the Commonwealth to meet the interest and sinking fund requirements of the appropriations and loans authorized by chapter four hundred and seven of the acts of the year eighteen hundred and ninety-three, chapter two hundred and eighty-eight of the acts of the year eighteen hundred and ninety-four, chapter three hundred and five of the acts of the year eighteen hundred and ninety-five, and all acts in addition thereto and in amendment thereof, and the amount required to meet the expenses for that year of said board of metropolifcan park commissioners and of the care, maintenance and operation for that year of the parks, reservations, boulevards and other works acquired, cared for or controlled by said board under said acts, as annually authorized by the general court, and the deficiency, if any, in the estimates and payments for the preceding year as found by said treasurer, and shall return their award thus determined into said court: provided, however, that the commissioners shall fix and return the proportion to be paid by the city of Boston for each year of the first of said terms at fifty per cent. Every such award when accepted by said court shall be a final and conclusive adjudication for the term for which it is made, of all matters referred to the commissioners, and shall be binding upon all parties.”</p>

<p>Petition to enforce a mechanic’s lien for lumber furnished for a building erected on certain land in Watertown under a contract with one A. P. Brown against said Brown and Frank E. Sanborn, mortgagee of the said land, filed July 22,1896.</p> <p>At the trial in the Superior Court, the following questions were submitted to the jury and answered by them in writing as follows;</p> <p>“ 1. Did the petitioners in the above entitled action furnish the materials set forth in their petition, or any part thereof, and were they actually used, in the erection, alteration or repair of the building upon the premises described in said petition ? ” “Yes.”</p> <p>“ 2. Did the petitioners furnish the materials upon the building by virtue of an agreement with the owner or with any person or persons having authority from or acting for the owner?” “ Yes.” “ If there was such an agreement, what was its date ? ” “February 4, 1896.”</p> <p>“ 3. Did the respondent Brown have authority from the owner of the land to erect a building on the premises described in the petition ? ” “ Yes.”</p> <p>“ 4. Did the petitioners within thirty days after they ceased to furnish materials for said building, file in the Registry of Deeds a statement as prescribed by Pub. Sts. c. 191, § 6, and the amendments thereof?” “Yes.”</p> <p>“ 5. Did the petitioners commence their suit within ninety days after they ceased to furnish materials upon the building ? ” “Yes.”</p> <p>“ 6. Did the petitioners perform their contract? ” “ Yes.”</p> <p>“ 7. Are the prices charged by the petitioners in their account a reasonable charge for the materials furnished? ” “Yes.”</p> <p>“ 8. Was the owner of the land the purchaser of the materials from the petitioners?” “Not at the time the contract was made, but was April 14, 1896.”</p> <p>“ 9. Did the petitioners give notice in writing to the owner of the property to be affected by the lien before furnishing the materials that they intended to claim a lien ? ” “ No.”</p> <p>“ 10. Was there any contract between the petitioners and the respondent Brown made at a time when Brown held the title to the property prior to the delivery of the mortgage by Brown to the respondent Sanborn, under which the petitioners furnished the materials, or any portion of them?” “The only express contract was that made on February 4, prior to the mortgage, and which still continued in force at the time the mortgage was given. The deed from Lyman to Brown and the mortgage from Brown to Sanborn were delivered simultaneously at the Registry of Deeds on April 14, 1896.”</p> <p>“11. Did the respondent Brown, prior to the time of making the contract with the petitioners, represent to the petitioner Sprague that he, Brown, was the owner of the lot of land or premises described in the petition ? ” “ Yes.”</p> <p>“12. Was such representation made by Brown with knowledge of its falsity and for the purpose of inducing the petitioners to furnish materials for the erection of a building on the lot in the belief that they were furnishing them to the owner and would have a lien upon the land therefor?” “Yes.”</p> <p>“ 13. Did the petitioners believe and rely upon such representation, and were they induced thereby to make the contract for furnishing materials and to furnish the materials? ” “Yes.”</p> <p>“14. Was such representation a material inducement to the petitioners to enter into the contract and furnish the materials, so that the petitioners would not have made the contract but for such representation?” “Yes.”</p> <p>“ 15. Did the respondent mortgagee, Frank E. Sanborn, know at the time he took his mortgage upon the premises that the petitioners had a claim for materials furnished to Brown and used upon the premises described in the petition for which they had not been paid?” “Yes.”</p> <p>“ 16. Did the respondent mortgagee, Frank E. Sanborn, know at the time he took his mortgage upon the premises described in the petition that the petitioners had a claim of lien upon the premises for materials furnished upon the premises ? ” “Yes.”</p> <p>“17. Did the respondent mortgagee, Frank E. Sanborn, at the time he took his mortgage, know of the fraudulent or false representations of Brown to the plaintiffs in relation to Brown’s ownership of the land upon which the building was to be erected.” “Yes.”</p> <p>Upon the motion of the petitioners, the Superior Court made a decree establishing the lien and ordering a sale; and the respondent Frank E. Sanborn appealed.</p>

<p>Petition to recover for taking land, water and water rights in the town of Berlin, in the county of Worcester, by the town of Hudson in the county of Middlesex, under and by virtue of the provisions of St. 1898, c. 222, filed June 26, 1899.</p> <p>At the trial in the Superior Court, before Stevens, J., the following facts'appeared: The taking was to enlarge and improve the respondent’s system of water supply established under the provisions of St. 1883, c. 149. St. 1898, c. 222, § 1, provides that the respondent town, to effect such “ enlargement and improvement may take and hold in fee, by purchase or otherwise, land in the town of Berlin situate on Fosgate brook, so called, a stream north from Gates pond in said Berlin, together with the water and water rights belonging to said brook or tributary thereto, may erect a dam on and across said brook, and by a pipe or aqueduct may conduct the water of said brook into said Gates pond, the water supply of said town of Hudson. For the purpose of laying said pipe or aqueduct the town,of Hudson may take and hold as aforesaid land for such use.”</p> <p>On June 30, 1898, the town of Hudson took in fee thirty-seven and fifty-seven one hundredths acres of land belonging to the petitioner, with all the water and water rights thereon; and also a strip of land thirty feet wide in which to lay one or more pipes or aqueducts to convey the water to Gates Pond. This strip was not taken in fee, and the pipe line was not to be fenced.</p> <p>The location contained the following words: “ Also we do hereby take and hold in manner and form aforesaid, all the water, water rights and water supply, flowing to or from the premises above described, for the purpose of conveying the water by a pipe, pipes or aqueduct to Gates Pond, so called, in said Berlin, the same being the water supply of said town of Hudson.”</p> <p>On the petitioner’s farm was a brook flowing through and out of the farm, called Fosgate Brook, and into Fosgate Brook, as a tributary, flowed Joslin Brook, forming a junction with Fosgate Brook at a point within the area taken by the respondent. This brook rose outside of the land of the petitioner, and flowed through it to its junction with Fosgate Brook.</p> <p>There was evidence that after the taking of 1898 the respondent cleared out the channel of Joslin Brook, both in the petitioner’s land and above and outside the taking.</p> <p>Fosgate Brook, after its junction with Joslin Brook, flowed before the taking through the petitioner’s pasture described below, and through his barnyard, in both of which places the petitioner had for a long time been accustomed to water his horses and cattle.</p> <p>At the date of taking, the petitioner owned about one hundred and fifty-two acres of land, with a dwelling-house, barn and dairy-house thereon, and some twenty rods north from these buildings, on the east side of the road, another barn, where he kept his cows. To this latter barn water was conveyed, and had been, since 1849, by a half inch lead pipe, from a well one hundred rods to the west, on high land included in the tract taken in fee by the respondent. A pasture to the south, containing some twenty acres, formed a part of this farm and bordered for a considerable distance on Gates Pond. This was conveyed to the petitioner in 1892. When Gates Pond, on June 4,1884, was taken by the town of Hudson, under St. 1883, c. 149, as a water supply, the petitioner was not the owner of this pasture nor of any land bordering on Gates Pond. At that date John G. Fosgate, an uncle of the petitioner, and Marshall Fosgate were owners of the pasture and much of the rest of the farm. When the respondent took Gates Pond it took a strip of land around it, and a reservation was made to the eight owners of land bordering thereon as follows:</p> <p>“ The aforesaid premises are taken for the purpose of enlarging the area of said Gates Pond as occasion may require and for the purpose of preserving the purity of the water thereof in converting the same into said reservoir to supply the town of Hudson with water.</p> <p>“ In this taking, the reservation is expressly made to the eight landholders last above named, their heirs and assigns, for their cattle to come to said Gates Pond to drink and to the said owners, their heirs and assigns, to come to said pond to cut ice for domestic purposes and to otherwise enjoy the use of said pond in so far as the same shall not pollute or contaminate the purity of the water therein or unreasonably interfere with the use and enjoyment thereof by the town of Hudson aforesaid as a reservoir to supply the inhabitants of said town with pure water.”</p> <p>On April 22, 1885, John G. Fosgate and Marshall Fosgate, the petitioner’s grantors, gave the respondent a quitclaim deed of their land taken under the act.</p> <p>At the trial the petitioner contended, and there was evidence to show, that by the taking of 1898 of the thirty-seven and fifty-seven one hundredths acres he was deprived of a water supply; that the respondent had diverted the waters of Fosgate and Joslin brooks, below their junction, from the petitioner’s pasture and barnyard. The petitioner contended that the deed of John G. Fosgate and Marshall Fosgate to the respondent, of April 22, 1885, deprived the petitioner from going to Gates Pond to water his cattle. But the court ruled that the reservation referred to above was not lost by the deed of April 22, 1885, and that the petitioner as owner of the pasture was entitled to the enjoyment of the rights thereby reserved.</p> <p>The petitioner also contended, and there was evidence to show, that by the diversion of the brooks his pasture and other land were wholly7 deprived of water, and that if the use of Gates Pond as a watering place for cattle should, in view of the fact that its waters were used for drinking and domestic purposes by the respondent, amount to a pollution or contamination of the purity of the water, and the petitioner, in consequence of such pollution, be shut off from watering his cattle there, the taking and diversion of the waters of the brooks would be a very serious damage.</p> <p>One Hastings, an expert witness for the petitioner, was asked by the petitioner the following question: “ Suppose that the going of the cows to the pond to drink, the wading in and standing in the water as cows sometimes do, pollutes the water of Gates Pond so that he would be cut off upon that ground from having his cows water at Gates Pond, what do you say would be the effect upon that land ? ”</p> <p>The judge admitted this question against the objection of the respondent; and the respondent excepted.</p> <p>The witness answered: “ Practically7 that would destroy the land for a pasture altogether, without some means to supply .some water.”</p> <p>One Lewis, a witness for the respondent, was asked on cross-examination by the petitioner the following question : “ Suppose the town of Hudson has the right, if the use of Mr. Fosgate’s cows of that drinking place pollutes the water, to prevent cattle from going there, and suppose, as I have, that the cows going in there does pollute it, it being water used for drinking purposes, and in consequence of its pollution his cows are shut off altogether from Gates Pond as a drinking place, then is n't the loss of that running stream through his pasture a serious injury ? ”</p> <p>To this question the respondent objected. It was admitted by the judge, and the respondent excepted.</p> <p>The witness answered : “ Certainly, if cut off wholly from the pasture it would be a damage to it. According to the extent of the pasture and feed.”</p> <p>In his charge to the jury the judge gave the following instructions in regard to the rights of the petitioner in Joslin Brook :</p> <p>“ I assume from the evidence in this case that there is no dispute but that Joslin Brook was a natural stream and the riparian proprietors or people on the line or borders of that brook had the rights which riparian proprietors always have, and had the right therefore which this petitioner had in Fosgate Brook, so called, before the taking by the town of Hudson. He had the right and he has the right now to use the waters reasonably of Joslin Brook so far as he can do so without interfering with the rights of the town of Hudson or the riparian proprietors below him. He has not the right materially to diminish the flow of the water to which the owners below him are entitled, but he has the right to make a reasonable use of that water, so far as he may do it without materially interfering with the natural flow of the water to which the owners below, and the town of Hudson, who is the owner, are entitled. He has not the right to divert the waters of Joslin Brook for the purpose of selling such water, he has only the right to divert it so far as he may do so for the use of the farm and in such a manner as not to materially interfere with the flow of the water in the brook below.”</p> <p>After the charge, the respondent requested the judge to instruct the jury as follows: First, the petitioner has the right to divert the waters of Joslin Brook for all legitimate purposes in connection with his farm. Second, the town of Hudson, under the evidence, has not taken the waters of Joslin Brook and cannot interfere with the particular riparian rights therein.</p> <p>The judge declined to give these instructions, in the form presented, and the respondent excepted.</p> <p>The petitioner argued to the jury that he was entitled to have them consider, in assessing his damages, the possibilities to which his estate might be put in the future; that is, possibilities for future development. The respondent asked the judge to instruct the jury: u The petitioner is not entitled to have damages assessed because of the possibilities of the future or a future development.” This instruction the judge declined to give, and the respondent excepted.</p> <p>The jury found for the petitioner and assessed damages in the sum of $5,226; and the respondent alleged exceptions.</p>

<p>A machine maker of established reputation who on an order from a manufacturer makes and delivers a machine to be used for a certain purpose, with a defect obvious upon inspection, is liable to such manufacturer for the amount of damages lawfully paid by him to his employees injured by an accident, caused by the negligence of such manufacturer in using the machine for the purpose for which it was ordered without a previous inspection.</p> <p>A manufacturer of rubber goods ordered from a boiler maker of established reputation a boiler that would stand a working pressure of a hundred pounds, for the purpose of devulcanizing rubber by means of naphtha vapor. The boiler maker accepted the order and made and delivered a boiler, which was defective by reason of the construction of the hinge of its door, which prevented such door from being screwed tightly enough against the packing. The defect was patent and would have been discovered by inspection. The manufacturer without inspection proceeded to use the boiler for devulcanizing rubber, whereupon at a pressure of seventy-five pounds the packing blew out, allowing the naphtha vapor to escape and cause an explosion, in which several of the manufacturer’s employees were injured. The manufacturer, on the ground that he was liable to his injured employees on account of his negligence in failing to inspect the boiler, paid them the damages to which they were entitled and sued the boiler maker to recover the amount thus paid. Held, that on these facts a verdict for the plaintiff could be sustained, on the ground that the plaintiff’s failure to inspect the boiler before using it was due to the warranty or representations of the defendant, the consequences of the false warranty being not too remote. Whether the injured workmen could have recovered against the boiler maker directly, and whether such liability of the defendant is a necessary condition of a recovery over, as by the plaintiff in this case, quaere.</p> <p>Where it was material to show, that the maker of a certain boiler was notified that it was to be used for experiments in a certain patented process to be conducted by the patentee, it was held that the letters patent could be introduced in evidence as a foundation for testimony of the patentee that he told the boiler maker of the use for which the boiler was wanted.</p> <p>Upon the issue whether a certain explosion was caused by the defective construction of the hinge of the door of a boiler which prevented such door from being screwed tightly enough against the packing, semble, that it may be competent to show that experiments two or three months later with a similar boiler, and with all conditions similar except the hinge, did not result in an explosion.</p>

<p>Petition- to enforce a mechanic’s lien brought by Richard C. Williams for the benefit of William K. Pinkham, for labor and materials furnished by Williams under a contract with one Rudnick, filed December 30, 1899.</p> <p>The case was defended by the respondent John P. Webber, a mortgagee of the land and building on which the lien was sought to be enforced.</p> <p>At the trial in the Superior Court, before Q-aslcill, J., it was admitted that the certificate was filed December 18, 1899, and that the description of the property therein contained was sufficient and'the name of the owner correct. It was not disputed that the account was just and true, unless it was shown to be untrue by the following facts:</p> <p>The labor mentioned was performed and furnished by the petitioner and men in his employ under a contract with Morris Rudnick of Boston, dated August 21, 1899, by which the petitioner agreed to furnish all the labor and materials for the lathing, wire lathing and plastering in the building numbered 770 on Massachusetts Avenue, in Cambridge, then belonging to Rudnick. In consideration of the performance of this agreement, Rudnick agreed to pay Williams $1,525 in the following manner: $700 when the house was all mortared,$300 when the plaster was all skimmed, and the balance of $525 thirty days after all the patching was done and the entire job was completed.</p> <p>Thereafter, the following instrument was executed by Williams and delivered by him to Pinkham, and the assent thereon was signed by Rudnick:</p> <p>“ Boston, August 29, 1899. Mr. Morris Rudnick, Boston, Mass. Dear Sir: The written contract that I made with you for the lathing and plastering for the building situated in Cambridge, and numbered 770 on Massachusetts Avenue, the amount of which is fifteen hundred and twenty-five dollars ($1,525.00), I hereby transfer and assigii to William K. Pinkham, who will collect the payments according to the contract, and to whom all moneys are to be paid. And I, Richard C. Williams, do hereby constitute and appoint the said William K. Pinkham and his assigns to be my attorney irrevocable in the premises, to do and perform all acts, matters, and things touching the premises, in the like manner to all intents and purposes as I could if personally present. In witness whereof, I have set my hand and seal, this twenty-ninth day of August, 1899. R. C. Williams (seal). Signed, sealed and delivered in presence of Ella A. Taylor.”</p> <p>“ Boston, Sept. 8, 1899. I assent to above assignment and agree to pay W. K. Pinkham according to contract. Morris Rudnick.”</p> <p>Thereafter Pinkham received the payments under the contract and paid the men other than the petitioner employed on the work. It did not appear in what capacity the payments were made and the money received, nor was there any further evidence bearing on the scope and effect of the assignment. ,</p> <p>On this evidence, the respondent asked the judge to rule, that the account in the certificate was not just and true, since by virtue of the assignment and the memorandum annexed thereto the sum named was due not to Williams but to Pinkham.</p> <p>The judge refused to rule as requested, and thereupon the respondent consented, subject to his exception to such refusal,.that the jury might find that said account was just and true.</p> <p>The respondent further requested the court to rule, that the assignment operated as matter of law to terminate the petitioner’s lien, but the court refused so to rule, and upon the petitioner’s motion, after the jury had answered the issues, ordered the lien established; and the respondent Webber alleged exceptions.</p>

<p>Where the nature of the soil and the shape and depth of a trench are such as to require shoring, it is negligence on the part of an employer to put a laborer at work in the trench with its sides unsupported and without providing material for shoring it.</p> <p>A laborer who has had considerable experience in working in trenches and laying pipes therein, when ordered into a trench to lay a pipe, is not bound to inspect the sides of the trench before going to work, and in an action for injuries caused to such a workman by the caving in of the side of the trench, it is a question for the jury whether he was in the exercise of due care.</p> <p>In an action for injuries caused by the caving in of the side of a trench in which the plaintiff was working, where the negligence of the defendant’s superintendent is in issue, the fact that the superintendent’s attention was called to the danger of the trench and the need of shoring it, may be shown by evidence of statements made to him by a third person; and where the person making the statements worked in the same trench earlier on the same day, he may be allowed to state what precautions he took for his own safety, this having a bearing on the dangerous character of the trench, and also being admissible to rebut any inference prejudicial to his testimony that might be drawn from his conduct in going into the trench to work.</p>

<p>A bill in equity by an executrix, seeking a reconveyance of certain real estate con? veyed to the defendant by the plaintiff’s testatrix, alleged that, such testatrix being unable to write her name, the defendant induced her to affix her mark to a deed of the property in question by a representation that it was a merely formal matter, saying to her “ I want you to sign this paper. It does n’t amount to anything,” and that the plaintiff’s testatrix executed the instrument, believing that by so doing she was not conveying away any right in her property. After a hearing on the merits, the bill was dismissed by a final decree not appealed from. Subsequently, by a second bill in equity, the same plaintiff sought from the same defendant a reconveyance of the same property, alleging that the plaintiff’s testatrix, being seventy years of age, unable to read or write and of failing mind, formerly lived with the defendant, the husband of her daughter since deceased, that after her daughter’s death the plaintiff’s testatrix determined to live with the plaintiff, and that thereupon the defendant by his inducement, persuasion and undue influence procured her assent to the conveyance of the property to him without consideration, and that the conveyance was not the free act of the plaintiff's testatrix but was the will and act of the defendant. To this second bill the defendant pleaded res judicata, setting up the decree dismissing the plaintiff’s first bill. Held, that the plea was good and the decree a bar to the plaintiff’s second bill; that the two bills were genetically for the same alleged grievance, namely, that the plaintiff’s testatrix was given by the defendant an improperly created motive for making the conveyance to him, and differed only in the statement of the motive, and the plaintiff was bound to bring forward in support of her first bill all the matters stated in her second bill.</p>

<p>Tort, with counts both at common law and under the employers’ liability act, by a freight brake man of the defendant working as a switchman, to recover for injuries caused by his losing his hold and falling by reason of a pile of stones lying near the track of the defendant, when the plaintiff was attempting to get upon a moving engine in the course of his duty. Writ dated July 15,1898.</p> <p>At the trial in the Superior Court, before Blodgett, J., there was evidence that the plaintiff was twenty-eight years of age; that he worked for the defendant company as freight brake man during the years 1896, 1897 and 1898, about one year and a half of service in all; that at the time of the accident, January 14, 1898, he was a member of a certain switching gang and of such gang was the one most commonly called upon to throw the switches. He was in fact called the switchman.</p> <p>It appeared, that in the Lowell yard of the defendant company there was a track which ran from the Lowell Bleachery ; that in order to go from the Bleachery track to track number three where the engine was to go for the purpose of hauling out certain cars, it was necessary to throw two switches. These two switches were about eighty feet apart; that just before the engine reached the first of the two switches it stopped ; that the plaintiff went ahead and threw the first of the two switches; that he then walked ahead to the second switch which he also threw, so that the engine could go down on track number three.</p> <p>The plaintiff testified that after he threw the second of the two switches he walked back to meet the engine ; that he walked probably ten or twelve feet from the switch towards the engine, and as the engine came along took hold of the grab iron of the tender, the engine then being on track two; that the engine was then backing down and not going head on ; that he took hold of the grab iron of the tender, and just as he went to get on to the engine it suddenly started and he lost his footing; that he tried to follow along and grabbed hold of the handle of the cab, and tried to get upon the engine, but every time he got his footing he would lose it, and he got down to a pile of rocks that was ten feet from the switch, that is, north of the switch, and he fell over them and his arm went out under the wheel of the engine; that the engine, at the time that he first attempted to put his hand upon the grab iron, was going at just about a smart walk, at such a rate of speed that any one could step upon it, probably about four miles an hour ; that during the time that he was trying to get upon the engine, it was going double speed, that is, that it was going eight or ten miles an hour. The defendant’s counsel agreed that the plaintiff was expected to get upon the moving engine, and that it was a part of his duty to do so.</p> <p>The plaintiff also testified that the pile of rocks caused him to fall, that he tripped over them, and that he lost his grip on the grab iron when he struck the pile of rocks. All other material facts are stated in the opinion of the court.</p> <p>The defendant asked for certain rulings which were refused by the judge. The jury returned a verdict for the plaintiff in the sum of $6,500; and the defendant alleged exceptions, which, Blodgett, J., having resigned, were allowed by Aiken, J. The questions raised by the exceptions are stated in the opinion of the court.</p>

<p>Section 21 of Pub. Sts. c. 60, requires oats to be sold by the bushel. Section 22 of the same chapter requires a bushel of oats to be thirty-two pounds. Held, that a sale of oats by the bag under a custom requiring each bag to contain two bushels of thirty-two pounds each was a valid sale. Eaton v. Kegan, 114 Mass. 433, distinguished.</p> <p>In an action for the price of oats sold “by the bag,” evidence is admissible, of a usage of trade by which the term “bag of oats” means sixty-four pounds of oats, not including the bag, or two bushels of oats of thirty-two pounds each.</p>

Petition to enforce a mechanic’s lien upon certain real estate on Lindsey Street, in Dorchester, a part of Boston, filed January 22, 1900. At the time of the alleged contract the respondent Berry and one Herbert A. Merry were tenants in common of the property. Merry sold out to Berry in August, 1899, and the petition was brought against Berry alone. Berry did not enter his appearance nor defend the suit, but testified at the trial as a witness for the petitioner.

<p>A probate bond in the ordinary form filed in the registry of probate, satisfactory to the beneficiaries and accepted orally by the judge of probate but never approved by him in writing as required by Pub. Sts. c. 143, § 2, is valid at common law, and the sureties are liable upon it in a suit brought in the name of the judge of probate. Whether such bond is invalid as a statutory bond, qucere.</p> <p>Where, in a probate bond in the ordinary form, the principal is described as trustee under a certain will for two beneficiaries named, whereas in fact there are also other beneficiaries not mentioned, this omission will be regarded as a mistake, the plain intention being that the bond should be security for all persons beneficially entitled.</p> <p>The granting by a judge of probate of a petition for leave to bring suit in his name against the sureties on a trustee’s bond, settles nothing but the leave to sue and cannot affect any question of liability upon the bond.</p> <p>A surety on a trustee’s bond is liable for any default on the part of the trustee in not accounting for assets received before as well as after the execution of the bond.</p>

<p>Section 14 of the Metropolitan Water Supply Act, St. 1895, c. 488, provides that, if persons suffering injury in an established business on land in West Boylston cannot agree with the water board as to the amount of damages to be paid to them, “such damages shall be determined and paid in the manner hereinbefore provided.” Held, that the “ manner hereinbefore provided ” is a petition to the Supreme Judicial Court for a commission under the previous provisions of the same section and not a petition to the Superior Court for assessment of damages by a jury under the provisions of the preceding section.</p>

<p>Bill in EQUITY by attaching creditors of the Keen Sutterlee Company, a corporation having its place of business at Philadelphia in the State of Pennsylvania, to restrain the defendants from the further prosecution of a suit brought by them against that corporation, in which they made an attachment prior to that of the plaintiffs, the debt sued on by them having been paid in full since their suit was begun, filed February 1, 1900.</p> <p>The bill as amended was as follows: “Joseph B. Moors and Arthur W. Moors, both of Boston, in the county of Suffolk, partners under the firm of J. B. Moors &' Company, bring this bill of complaint against Adolph Ladenburg, Ernest Thalman and Richard Linnburger, partners under the firm of Ladenburg, Thalman & Company, having their usual place of business in the city, county and State of New York.</p> <p>“ 1. The plaintiffs are creditors of the Keen Sutterlee Company, a corporation having its principal place of business in Philadelphia, in the State of Pennsylvania, and on January 11, 1896, brought suit in this court against said Keen Sutterlee Company for the purpose of collecting their debt against said company, and caused certain goods then in the possession of said Keen Sutterlee Company in Boston, of the value of three thousand seven hundred and twenty-four dollars and nineteen cents, $3,724.19, to be attached on said writ.</p> <p>“ 2. The Keen Sutterlee Company has been defaulted in said action and the plaintiffs are entitled to judgment therein to the amount of their claim, with interest, to wit, the sum of twenty-nine thousand eight hundred and twelve dollars and ninety-seven cents, $29,812.97, but judgment in said action has been staid to await the proceedings in the suit of Ladenburg, Thalman & Company against said Keen Sutterlee Company hereinafter referred to.</p> <p>“ 3. Ladenburg, Thalman & Company, on said January 11, 1896, were also creditors of said Keen Sutterlee Company, and on said day, but a few minutes before the attachment by the plaintiffs as aforesaid, brought an action in this court to collect their said claim and cause the said goods of said Keen Sutterlee Company to be attached thereon. The complainants have intervened in said action as subsequent attaching creditors, by petition to the court in the manner provided by statute, and are parties to said suit with all the powers and privileges to which subsequent attaching creditors are entitled.</p> <p>“ 4. Said Keen Sutterlee Company have not appeared but have been defaulted in said suit of said Ladenburg, Thalman & Company against said Keen Sutterlee Company; and said Ladenburg, Thalman Company are entitled to have judgment entered therein in their behalf, and to take out execution on said judgment and to levy on said goods.</p> <p>“ 5. Since the bringing of said suit by said Ladenburg, Thalman & Company against said Keen Sutterlee Company, said Ladenburg, Thalman. & Company have been fully paid out of securities held by them and from other sources, so that now nothing is due from said Keen Sutterlee Company to said Laden-burg, Thalman & Company, and the further prosecution of their said suit against said Keen Sutterlee Company and the levy upon said goods will prevent the plaintiffs from applying the same to the satisfaction of their claim.</p> <p>“ 6. No member of the firm of Ladenburg, Thalman & Company can be reached to be served with process within this jurisdiction and the said firm has no property which can be come at to be attached within this jurisdiction ; but Edwin N. Hill, an attorney of this court, was and is the attorney for the said Ladenburg, Thalman & Company in their action against the Keen Sutterlee Company, which action is now pending in thé Superior Court for the county of Suffolk.</p> <p>“ Wherefore, the plaintiffs pray that the said Ladenburg, Thalman & Company may be restrained from the further prosecution of their said suit against said Keen Sutterlee Company, and may be ordered to discontinue the same, and for further and general relief.”</p> <p>Edwin N. Hill, named in the sixth paragraph of the bill, appeared specially for the several defendants for the purpose of objecting to the jurisdiction of the court oyer the defendants, and for the special purpose of making a motion to dismiss the bill for want of jurisdiction.</p> <p>Upon such motion to dismiss, the Superior Court ordered and decreed that the bill be dismissed, with costs; and the plaintiffs appealed.</p>

Bill in equity seeking to remove a cloud from the title to the plaintiff’s land created by an instrument dated February 24, 1890, and recorded February 26, 1890, purporting to be a taking by the defendant of certain land of the plaintiff therein described, for the purposes set forth in St. 1872, c. 344, St. 1876, c. 54, and St. 1889, c. 302, “ and all other acts relating to supplying the city and town of Newton with water and for the purposes of the water supply for the said…

<p>A promise in general terms to give security out of one’s property, is merely a personal undertaking having no application to specific property, and does not prevent a subsequent conveyance in pursuance-of such promise, made in contem- • plation of insolvency, from being an unlawful preference.</p> <p>If any part of a sale or conveyance is fraudulent as an unlawful preference, the whole is void.</p> <p>A bill of sale of chattels recorded as such, taken as security for a debt but not recorded as a mortgage, gives no title without delivery of the chattels.</p>

<p>One who files a petition to enforce a mechanic’s lien, under an entire contract to perform and furnish certain labor and materials for a round sum, on which a payment on account lias been made, and who in his petition credits one half of the payment upon the sum due to him for labor and the other half upon the sum due for materials, may be allowed to amend his petition by crediting the whole amount of the payment upon the sum due for materials and claiming the whole amount due to him for labor without deduction, the statement in his petition being a narration which can be corrected, and not an offer or an appropriation. The petitioner’s understatement of his claim for labor, subsequently corrected, comes within the provision of § 8 of Pub. Sts. c. 191, that the validity of the lien shall not be affected by an inaccuracy, not wilful, in stating the amount due for labor or materials.</p> <p>A mechanic’s lien may be established for labor performed in making, under an entire contract for a round sum, the apparatus and appliances for a brewery, to be inserted in the building and connected together by pipes, although part of the labor was performed in the petitioner’s shop in another city, and the final connecting of the various appliances by pipes in the brewery may have been done by persons other than the petitioner.</p>

Tort by the widow of Re mi Cote under St. 1887, c. 270, as amended by St. 1894, e. 499, to recover for the instantaneous death of her husband, an employee of the defendant, from being struck by a plank thrown down a dust chimney in the defendant’s mill. Writ dated May 19, 1900.

<p>Bill in equity by a stockholder of the defendant to restrain it from constructing tracks outside the limits of the highways of the Commonwealth, filed November 1, 1900.</p> <p>The case was heard in the Superior Court, by Fessenden, J., who reserved it on the bill and answer and agreed facts for the consideration of the full court, such decree to be entered as justice and equity might require.</p> <p>The agreed facts were as follows: “First. It is agreed that Loring N. Farnum, of Boston, county of Suffolk and Commonwealth of Massachusetts, was a subscriber for ten shares of the capital stock of the Haverhill and Andover Street Railway Company, and that the Haverhill and Andover Street Railway Company is a corporation duly organized under the laws of the Commonwealth of Massachusetts, by charter dated October 23, A. D. 1900. And that the said corporation has a location or franchise to lay its tracks in certain streets or highways of the towns of Andover and North Andover, both in the county of Essex, Commonwealth aforesaid, and that the said locations have been duly accepted by the said Haverhill and Andover Street Railway Company.</p> <p>“ Second. It is agreed that the Haverhill and Andover Street Railway Company through its proper officers contemplate building, and have taken preliminary measures to build, a certain section of track outside the limits of the highways of the Commonwealth of Massachusetts, to wit: that beginning at a point on the northwesterly side of Elm street in the town of Andover, at or about the house of Plato Eames so called, and running in a northwesterly direction over the land of private individuals for a certain great distance, to wit, about one half mile to a road or street in Andover known as the old railroad track, and being a continuation of High Street, so called, in Andover aforesaid.</p> <p>“ Third. It is agreed that the Haverhill and Andover Street Railway Company, through its proper officials, intend to purchase from private individuals, and have taken preliminary steps to accomplish such purchase with the funds of the corporation, the fee simple in lands over which the tracks of the Haverhill and Andover Street Railway Company are to be laid outside of the limits of the highways of the said town of Andover as above set forth.</p> <p>“ Fourth. It is agreed that the Haverhill and Andover Street Railway Company is duly and lawfully organized under the general street railway law of the Commonwealth of Massachusetts, and has no grant from the Legislature of the Commonwealth of Massachusetts authorizing it to operate its road or tracks outside the limits of the highways of this Commonwealth.”</p>

Contract on an account annexed against the lessee for twenty-five years of the Jewelers Building, so called, on the corner of Washington and Bromfield Streets in Boston, to recover for putting in additional electric lights and wires not included in a written contract between the plaintiff and the trustees of that building. Writ dated July 19, 1899.

<p>A title company employed by a savings bank to examine the title to a certain lot of land and to draw the papers for a mortgage upon it, did so, and represented that the title was clear and unencumbered, and in reliance on this representation the bank made the loan, the title company drawing the mortgage. There was a prior mortgage which was held by the title company, the existence of which without intent to deceive it negligently failed to disclose. Subsequently the savings bank foreclosed its mortgage, and the receivers of the bank conveyed the land by a quitclaim deed to a purchaser, who had notice of the existence of the prior mortgage in the hands of the title company. In a suit in equity brought by such purchaser against the title company, to restrain.it from enforcing its prior mortgage, it was held, that the bill could be maintained, as the title company owed the savings bank the duty of using due care, to ascertain and report all encumbrances on the land, and, by its negligence having failed to do so, was estopped from setting up its prior mortgage. Held, also, that the fact that the plaintiff was a grantee under a quitclaim deed having full knowledge of the facts did not prevent him from enforcing the estoppel; that the savings bank had the election of suing the title company in tort for negligence or of bringing a suit in equity founded on the defendant’s estoppel, to enjoin it from setting up the encumbrance, and having elected to rely on the estoppel, could pass the right to a purchaser, who could enforce it in his own name.</p> <p>One who has a clear title by estoppel can convey his rights to any one, and the knowledge or ignorance of the purchaser is immaterial.</p> <p>One employed as an attorney to draw an instrument cannot take advantage of a claim founded on a statement surreptitiously inserted by him in the instrument to the prejudice of his employer, which is true in fact but which he is estopped by his former conduct from setting up.</p>

<p>A testatrix lay in bed in one room while two of the subscribing witnesses to a codicil to her will signed in another room on the opposite side of a narrow entry, the doors of both rooms being open. The witnesses sat at a table just inside the open door of their room, and the bed of the testatrix was in such a position that by rising slightly she could have seen the witnesses as they signed, but it did not appear whether or not she had the power thus to raise herself. Immediately after the signing by the witnesses, the codicil was shown to the testatrix. Held, that on these facts the witnesses could be found to have subscribed the codicil in the presence of the testatrix.</p>

<p>Petition of the selectmen of Hadley to the Superior Court for the county of Hampshire for leave to file a bill of review for the purpose of obtaining a review and reversal of a decree of that court of June 25, 1900, confirming a decision of commissioners appointed under St. 1890, c. 428, prescribing the alterations for the abolition of a grade crossing of the Massachusetts Central Railroad and Amherst Road in Hadley, known as Flaherty’s Crossing, filed August 28, 1900.</p> <p>The Central Massachusetts Railroad Company and the Boston and Maine Railroad, respondents, demurred to the petition.</p> <p>The case was heard in the Superior Court, by Aiken, J., who ordered that the former decree of that court be reversed and the matter recommitted to the same commissioners, and reported the case for the consideration of this court. If the demurrer should have been sustained, or if the order and decree were not justified, then the decree of the Superior Court theretofore made was to remain in force and effect.</p> <p>The report concluded as follows, the last paragraph (which is printed on the following page) giving the reasons for the decree : “ I find that at the hearing before the commissioners appointed by the Superior.Court, one or more of the selectmen of Hadley, who were present, understood from statements made at the hearing, that the State highway commission did not object to the plan then presented and subsequently adopted; but I find that, while such statements were not true and the selectmen were mistaken in their understanding, they were not induced thereby to assent to the report of the commission or to the decree subsequently made; and I find they would have continued to acquiesce in said decree, and would not have instituted the present proceedings but for the letter of Mr. McClintock [chairman of the State highway commission].</p> <p>“ I find there was no fraudulent intent in the making of said statements, and the statements either as alleged or proved are not sufficient to justify the reopening of proceedings, or a revision of the decree.</p> <p>“ Considerations of public convenience and safety, however, determine my conclusions in this matter. The evidence relating to such considerations was admitted subject to the exceptions of the respondents. I find that by reason of the continuous proximity of the highway and railroad as they approach, the crossingand by reason of sharp curves in the location of the proposed highway as it passes under the bridge provided for the railroad; and by reason of the space between the abutments of said bridge being insufficient for the usual and prospective travel of the public by street railway and otherwise ; and by reason that the abutments are so located that the traveller on the highway has a very limited view of the road ahead of him, where a view is essential by reason of the various forms of public travel liable to be concurrent at the place in question; and because in my judgment a widening of the space between the abutments will add to the public safety and convenience to an extent to justify the additional expense, (which is from $2,500 to $5,500 according to the plan adopted,) that the decree before made should be reversed, and the matter recommitted to the same commissioners and I so ordered and decreed.”</p>

<p>A false representation made with fraudulent intent by A. to B., a woman, that A., the speaker, was a man of large means and credit and had superior facilities for raising money, and that he could raise it on easier terms than B. could, and that if he had her land he could at once get a certain sum of money upon a mgrtgage of it, whereby B. was induced to convey to A. her land, which in consequence was sold on an execution against A., is not such a fraud as to afford a ground for equitable relief, in a bill brought by B. against the purchaser of the land at the execution sale.</p>

Tort to recover for injuries and conscious suffering of the plaintiff’s intestate followed by death, caused by an alleged defect in a short flight of steps leading to a basement room of a schoolhouse at the corner of St. Botolph Street and Cumberland Street in Boston, used as a polling place, when the plaintiff’s intestate was on his way to vote, said steps being alleged to be a part of a public footway or highway of the city of Boston. Writ dated November 29, 1898.

<p>. Information by the Attorney General against Henry Bigelow Williams and another, trustees of the Westminster Chambers Trust, the Westminster Construction Company, and Isaac F. Woodbury and George E. Leighton, copartners doing business under the name of Woodbury and Leighton, to restrain the defendants from maintaining the building called the Westminster Chambers on Copley Square in Boston above the height of ninety feet, and to order the removal of the portion of the building constructed above that height in violation of the provisions of St. 1898, c. 452, filed September 17,1898, wrongly printed September 11,1898,'in 174 Mass. 476.</p> <p>By the decision in this case made October 30,1899, reported in 174 Mass. 476, it was held that St. 1898, c. 452, relating to the height of buildings on and near Copley Square in Boston, was a taking of rights in property for the benefit of the public who use Copley Square, the Legislature seeking thereby to promote the beauty "and attractiveness of a public park in the capital of the Commonwealth, giving compensation to any person sustaining damage by reason of the limitation of the height of buildings provided for in the act, and that this was a public purpose for which the right of eminent domain lawfully could be exercised ; also, that the approval by the park commissioners of the city of Boston of the band of “ sculptured ornaments ” of terra cotta, constituting the architrave, frieze and cornice of two sides of the building, did not affect the 'limitation of height named in the statute.</p> <p>On October 2, 1900, the defendants filed the following motion :</p> <p>“ The defendants now represent that they desire to ascertain what alterations of their building described in the information are necessary to make it conform to the opinion of the court heretofore rendered on the demurrer and plea4 in this cause, without prejudice to their right to further defend upon the merits, or any other rights; that as the statute of 1898, on which the information is based, purports to. make the city of Boston liable to the defendants for any damages occasioned them by the operation of the statute, the character and extent of such alterations cannot be conclusively determined in this proceeding unless and until the city of Boston is made a party thereto; and that if such alterations are ascertained and made by the defendants without joinder of the city of Boston as a party thereto, the defendants will incur the risk of loss, and of having thereafter to make different or further alterations in their building, which risks they ought not to be required to incur. Wherefore, for this reason, and for other grounds and reasons appearing in their answer, the defendants move that the informant be required to join the city of Boston as a party defendant to this information, as a condition of further prosecuting the same, and that in default of such joinder the further prosecution thereof be stayed until the right of the defendants to compensation for all damages occasioned to their property by the operation of said statute, and the liability of the city of Boston therefor, are conclusively determined.”</p> <p>On October 5, 1900, this motion was denied by Barker, J., and the defendants appealed from such denial.</p> <p>Subsequently the case came before Morton, J., on a motion of the Attorney General for a final decree, and thereupon, at the request of all parties, the case was reserved by the justice upon the pleadings,-the defendants’ motion to have the city of Boston made a party, and the appeal from the denial thereof, and the agreed facts, for the consideration of the full court, such disposition thereof to be made as to the court should seem meet.</p> <p>The agreed facts were upon the following subjects: The history of the building before the passage of the statute, the history of Copley Square, the history of the statute, proceedings subsequent to the statute, and a description of the buildings on and about Copley Square. The agreed facts are so disposed of by the decision of the court that a statement of them is unnecessary.</p> <p>St. 1898, c. 452, entitled 66 An Act relative to the height of buildings on and near Copley Square in the city of Boston,” is as follows:</p> <p>“ Section.1. Any building now being built or hereafter to be built, rebuilt or altered in the. city of Boston, upon any land abutting on St. James avenue, between Clarendon street and Dartmouth street, or upon land at the corner of Dartmouth street and Huntington avenue, now occupied by the Pierce building, so-called, or upon land abutting on Dartmouth street, now occupied by the Boston Public Library building, or upon land at the corner of Dartmouth street and Boylston street, now occupied by the New Old. South Church building, may be completed, built, rebuilt or altered to the height of ninety feet, and no more ; and upon any land or lands abutting on Boylston street, between Dartmouth street and Clarendon street, may be completed, built, rebuilt or altered to the height of one hundred feet, and no more: provided, however, that there may be erected on any such building, above the limits hereinbefore prescribed, such steeples, towers, domes, sculptured ornaments and chimneys as the board of park commissioners of said city may approve.</p> <p>“ Section 2. The provisions of chapter three hundred and thirteen of the acts of the year eighteen hundred and ninety-six, and of chapter three hundred and seventy-nine of the acts of the year eighteen hundred and ninety-seven, so far as they limit the height of buildings, shall not be construed to apply to the territory specified and restricted in section one of this act.</p> <p>“ Section 3. The owner of or any person having an interest in any building upon any land described in section one of this act, the construction whereof was begun but not completed before the fourteenth day of January in the current year, who suffers damage under the provisions of this act by reason or in consequence of having planned and begun such construction, or made contracts therefor, for a height exceeding that limited by section one of this act for the locality where said construction has been begun, may recover damages from the city of Boston for material bought or actually contracted for, and the use of which is prevented by the provisions of this act, for the excess of cost of material bought or actually contracted for over that which would be necessary for such building if not exceeding in height the limit prescribed for that locality by section one of this act, less the value of such materials as are not required on account of the limitations resulting from the provisions of this act, and the actual cost or expense of any re-arrangement of the design or construction of such building made necessary by this act, by proceedings begun within two years of the passage of this act, and in the manner prescribed by law for obtaining payment for damages sustained by any person whose land is taken in the laying out of a highway in said city.</p> <p>. “ Section 4. Any person sustaining damage or loss in his property by reason of the limit" of the height of' buildings provided for in this act, may recover such damage or loss from the city of Boston, by proceedings begun within three years of the passage of this act, and in the manner prescribed by law for obtaining payment for damages sustained by any person whose land is taken in the laying out of a high way in said city.</p> <p>“Section 5. This act shall take effect upon its passage.”</p> <p> Approved May 23,1898. </p>

Tort to recover damages for an alleged illegal flowing of the plaintiff’s land by the defendant. Writ dated December 21, 1896. At the trial in the Superior Court, before Sherman, J., it appeared that the plaintiff and the defendant owned adjoining farms situated in the easterly part of Marlborough, and that in the year 1849 all the land included in both of said farms belonged to one Levi F. Whitmore, from whom both the plaintiff and defendant claimed title.

<p>In the Municipal Court of the city of Boston a plaintiff declared on an account annexed with seven items amounting in all to $40, with a credit of $5, leaving the balance sued for $35. He obtained judgment for $12, and costs amounting to $3.66. Thereupon, the plaintiff appealed to the Superior Court, which gave him judgment for $16. The defendant claimed costs after the appeal, under Pub. Sts. c. 198, § 4, on the ground that the Superior Court included in its judgment for $16 interest from the date of appeal to the date of its judgment, and that, allowing for the interest so included, the plaintiff did not recover a greater sum for debt or damages than he recovered by the first judgment. Held, that there was nothing to show that the increase in the amount recovered was for interest, that it did not even appear that the finding of the Superior Court was upon the same items of the account as that of the Municipal Court, and that the plaintiff was entitled to full costs.</p>

Petition for a writ of error to reverse a sentence of the Superior Court in and for the county of Hampden, passed October 3, 1899, ordering that the petitioner, who had been found guilty of larceny from the person of another, be punished by imprisonment in the State prison for not more than seven years and not less than six years, filed January 21, 1901. Pub.

<p>Street railway companies carrying passengers on ordinary public streets or highways are not negligent in not providing means for warning passengers about to leave a car of the danger of colliding with or being run over by other vehicles in the street.</p> <p>A street railway car was stopped by the motorman between two stopping places on account of the approach at great speed of a fire engine and a hose cart. A woman passenger who did not krlow of the alarm of fire and whose destination was the next stopping place, the name of which had been called by the conductor, proceeded to alight from the car and in doing so was struck by the hose cart and injured. When the car began to lessen its speed the conductor, being on the rear platform, found that the fire apparatus was approaching. He looked over the closed gate at the left of the platform and saw the engine pass on that side and continued to look in the same direction for the purpose of seeing when the hose cart would pass. Almost immediately the hose cart passed on the other side where the passenger was alighting. The conductor did not see the passenger as she came from the car to the platform nor until his atten- • tian was called to the other side by the passing of the hose cart, when he saw her on the ground. Held, that there was no evidence of negligence on the part of the street railway company.</p>

<p>Contract by a trustee in bankruptcy to recover $607 for goods sold and delivered by the bankrupt to the defendant. Writ dated May 29, 1900.</p> <p>The defendant filed an answer and declaration in set-off, alleging that the bankrupt owed him $638.48 for money paid for his use and benefit.</p> <p>The case was heard in the Superior Court upon the following agreed facts: The defendant Wordell was a copartner with Michael J. Dillon and Thomas C. McGuire, engaged in the dry goods business at Fall River under the firm name of Wordell, Dillon and McGuire. The partnership was dissolved by mutual consent on October 17,1898. Dillon purchased the stock of the old firm under the agreement of dissolution, and carried on the business individually until August 10, 1899, when he became a voluntary bankrupt. The plaintiff was the trustee in bankruptcy of Dillon.</p> <p>As a part of the consideration from Dillon to the retiring partners he agreed to assume all debts and liabilities of the firm, and covenanted to save the other partners harmless from loss on account thereof.</p> <p>None of the creditors of the firm released the retiring partners, but all of the creditors were paid by Dillon before going into bankruptcy except three, namely, H. B. Claflin and Company, The Fall River Daily Herald Publishing Company, and the Fall River Daily Evening News, to whom were owed respectively $738.48, $40, and $58.</p> <p>These three creditors, after Dillon went into bankruptcy and after the appointment of his trustee, demanded payment of each of the retiring partners, who investigated the claims and found that they were still unpaid. Thereupon the defendant Wordell, with knowledge of Dillon’s adjudication as a bankrupt, and the appointment of the plaintiff as trustee, paid the Fall River Daily Herald Publishing Company and the Fall River Daily Evening News in full, and paid H. B. Claflin and Company a portion of their claim, namely, $540.48, paying in all to the three creditors, $638.48. The other partner, McGuire, at the same time, paid the balance of $198 due to H. B. Claflin and Company and each took separate receipts running to himself individually for each payment.</p> <p>After the dissolution of the firm, the defendant bought goods of Dillon to the amount of $607.06, which were not paid for when Dillon went into bankruptcy. The plaintiff demanded the payment of this sum from the defendant on or before October 1, 1899, but interest was not claimed by either plaintiff or defendant, except from the date of the writ.</p> <p>In November, 1899, and after his payments to H. B. Claflin and Company and the Fall River newspapers mentioned above, the defendant offered a proof of claim in Dillon’s bankruptcy proceedings for the balance of $31.42, the difference between the amount owed to Dillon’s estate and the amount which the defendant claimed was due to him from Dillon’s estate, on account of the payments made by him to the three creditors of the partnership. This proof of claim was disallowed in the District Court of the United States by Lowell, J., in a decision rendered March 27, 1900, from which neither party appealed.</p> <p>The following facts were to be considered only if they were admissible:</p> <p>H. B. Claflin and Company offered a proof of claim in bankruptcy against Dillon amounting to $124 for goods sold to him after the dissolution of the partnership and exclusive of the $738.48 before mentioned, and this claim was disallowed, the referee finding that H. B. Claflin and Company had received a preference under the terms of the bankruptcy act, and this decision became a final judgment. Unless the facts stated in this paragraph are admissible there was no evidence in this case that H. B. Claflin and Company had received a preference.</p> <p>The retiring partner McGuire owed Dillon for goods purchased after the dissolution the sum of $198.12, which was not paid at the time Dillon went into bankruptcy. The estate of Dillon was not sufficient to pay his creditors in full.</p> <p>Upon the foregoing facts the Superior Court ordered judgment for the defendant; and the plaintiff appealed.</p> <p>Section 68 of U. S. St. of July 1, 1898,is as follows:</p> <p>“ Sec. 68. Set-offs and Counterclaims. — a In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid.</p> <p>“ b A set-off or counterclaim shall not be allowed in favor of any debtor of the bankrupt which (1) is not provable against the estate; or (2) was purchased by or transferred to him after the filing of the petition, or within four months before such filing,with a view to such usé and with knowledge or notice that such bankrupt was insolvent, or had committed an act of bank-r ruptcy.” , , °</p>

Wbit of entby to recover a strip of land ten feet wide lying on the westerly side of the demandant’s dwelling-house on Pond Court in the town of Clinton. Writ dated July 20, 1897. The tenant had occupied the demanded premises for many years, but less than twenty years, and to the demandant’s writ pleaded title to the demanded premises. The above plan was copied from a plan used at the trial and at the argument before this court.

<p>An abutter on a highway in a town, owning the fee to the centre of the way subject to the public easements, has no ownership in the highway that is affected by the construction and maintenance thereon under Pub. Sts. c. 112, §§ 223, 224, by a quarry company with the consent of the selectmen of the town, of a freight horse railroad for the transportation of stone from the quarry of the company to a steam railroad about a mile distant for distribution to purchasers. This is the use of an easement taken when the highway was created.</p> <p>The provisions of Pub. Sts. c. 112, §§ 223, 224, permitting a person or corporation to construct a railroad upon a highway for private use in the transportation of freight subject to the approval and regulation of the city or town wherein it is to be constructed, is constitutional. And where with the consent of the selectmen of a town a freight horse railroad was constructed by a quarry company under the sections above named, for the transportation of stone from the quarry of the company to a steam railroad about a mile distant for distribution to purchasers, it was held, that this was not a taking of the property of the owner of the fee of the highway. The transportation of its stone over the highway by the quarry company was done by it as one of the public under proper regulations by the selectmen, and it might be better for the condition of the road and more for the interest of the pubjic that the stone should be carried over the road on iron rails, than that the surface should be rutted by the wheels of heavily loaded wagons.</p>

<p>Exceptions -will not be disallowed or dismissed on the ground that the request for a ruling refused by the presiding judge was not shown to the counsel on the other side and that it was not known to him that the ruling was asked for or an exception to the refusal to give it taken, he all the timé being present in court. Semble, however, that the general .practice, that eacii party to a case should know what requests are made by the other party and should have an opportunity to he heard thereon if he so desires, is founded in justice and should he followed as the proper course.</p> <p>Whether and to what extent a highway must he made safe and convenient for persons riding on bicycles, quaere.</p> <p>Semble, that in an action against a town for an injury suffered from an alleged defect in a highway, the facts, if proved, that the plaintiff was riding a bicycle in the dark without a lamp outside the travelled part of the highway would warrant a jury in finding that he was not in the exercise of due care.</p> <p>In an action for personal injuries, where the question of the due care of the plaintiff is in issue, the presiding judge properly may refuse a request which singles out certain circumstances and asks the judge to rule upon their effect on the question of the due care of the plaintiff, apart from other circumstances bearing upon the same issue, although the ruling requested may be correct as an abstract proposition; and such refusal especially is justified when the request is made after the judge’s charge.</p>

Contract to recover $63 for goods sold and delivered according to the terms of. a written order. Writ, in the Municipal Court where the action was brought, dated March 14, 1898. In the Superior Court, to which the case came by appeal, at the trial before Hopkins, J., the following facts appeared. The order was as follows : “ Dr. A. P. Sawyer Med. Co., 161 Colorado avenue, Chicago. Salesman S. H. K. date sold Nov. 3, ’97. . . .

<p>A driver of a public carriage is not acting within the scope of his employment, who, when ordered to drive to the stable his day’s work being done, turns out of his course and drives some distance in an opposite direction in order to visit a saloon to get a drink, and there leaves his horses unattended, and his employer is not liable to a traveller on the highway injured by reason of the horses running away on account of the driver thus leaving them.</p>

<p>Petition under St. 1896, c. 257, requiring certain alterations in grade crossings at Hyde Park and Dedham, to recover for damage to certain real estate on MacDonald Street, lying mostly in the town of Dedham, the respondent, the alleged damage •having been sustained by the raising of the grade of a portion of Sprague Street, in Hyde Park, as provided by a decree of the Superior Court, dated May 7, 1897, confirming a report of a special commission appointed to determine the manner of separation of the grades of the New York, New Haven and Hartford Railroad, the New England Railroad, and certain ways crossing those railroads, filed May 19, 1898.</p> <p>At the trial in the Superior Court, before Gtasldll, J., the petitioners put in evidence • the report of an auditor to whom the case had been referred, and stated to the court that while they did not rely upon the auditor’s report, yet the auditor’s findings of fact, in relation to everything except damage, were correct.</p> <p>The petitioners, in addition to the auditor’s report, introduced the evidence of Charles E. Davenport, one of the petitioners. He testified that the petitioners carried on an ice business at Dedham and Hyde Park, and that their ice houses were on MacDonald Street on the south side of Sprague Pond about twelve hundred feet by the road from the beginning of the change of grade in Sprague Street. He also pointed out on the plan used at the trial another piece of land owned and occupied by the petitioners. He was then asked: “ What effect, if any, did this change of grade in Sprague Street have upon the value of the last mentioned piece of land ? ” The question was objected to and excluded. The petitioners’ counsel stated that the evidence was offered to show damage to the land and loss of the petitioners’ business, and that “ The evidence would be cumulative as to the damage to both pieces of property.”</p> <p>At the conclusion of Davenport’s testimony, the judge, at the request of the respondent, ruled that the petitioners could not recover, and ordered a verdict for the respondent. To this ruling and order, and to the exclusion of the evidence offered as above set forth, the petitioners alleged exceptions.</p> <p>The only question raised by the record was in regard to the correctness of the rule of law as to damages stated by the auditor in his report and approved by the judge. The auditor’s statement of the rule is given in full in the opinion of the court.</p>

<p>A petitioner seeking to recover damages alleged to have been suffered by him from a change of grade in a street made under St. 1896, c. 257, requiring the alteration of certain grade crossings in Hyde Park and Dedham, cannot testify what effect, if any, the change of grade had upon the view from his house, if his land was too far away to make it a practical question. Nor can he claim damages on the ground that the change of grade made it impossible to haul as heavy-loads over the street as before, such damage not being special and peculiar. The petitioner could have described the amount of the increased flow of surface water upon his land and the damage if any caused thereby, in case such increased flow of water had existed.</p>

<p>Under St. 1890, c. 428, § 5, amended by St. 1891, e. 123, to promote the abolition of grade crossings, in assessing the damages sustained by a petitioner in the remaining portion of a coal and lumber yard, a part of which had been taken under the act, such yard having upon it at the time of the taking spur tracks connected with the railroad, a ruling is right, that regard should be had to the premises as they were on the date of the decree changing the grade of the crossing, taking into consideration, as affecting the market value of the property, the railroad facilities as they then existed, hut with the possibility of the discontinuance of the spur tracks by the railroad company.</p> <p>Under St. 1890, c. 428, § 5, amended by St. 1891, c. 123, to promote the abolition of grade crossings, consequential damages cannot be recovered. This construction is enforced by the language of the act “All damages sustained by any person in his property,” but the principle is a general one not dependent on the exact phraseology. In this case, the damages excluded as consequential were the cost of moving the contents of a building cut off by the taking, waste in handling coal which had to be moved and loss from necessary interruption to business.</p>

<p>Under St. 1893, c. 396, § 25, a district court has no power to extend the time of twenty-four hours allowed by § 24 for taking an appeal to the Superior Court. It has power to extend the time for filing the bond required to perfect the appeal, but not beyond the next return day of the Superior Court. Semble, however, that when the party against whom a decision is to be made expresses an intention to appeal and a desire to have the time for filing the bond extended beyond the next return day, it is within the power of the district court in its discretion to postpone the formal entry of the judgment to a reasonable time, even to a time beyond the next return day, so that the proposed appellant then may be prepared to file his bond.</p> <p>The provision of St. 1893, c. 396, § 25, permitting an extension of the time for'filing the bond required on an appeal from a district court to the Superior Court, expressly excepts actions for forcible entry and detainer under Pub. Sts. c. 175, and in order to perfect an appeal in such an action the bond must be filed within the twenty-four hours allowed for taking the appeal.</p> <p>Where an appeal from a district court to the Superior Court is not perfected by the filing of a bond within the required time, the Superior Court cannot affirm the judgment of the district court appealed from, having no jurisdiction because no appeal has been taken. Its jurisdiction is confined to cases where an appeal having been taken lawfully, the appellant fails to enter and prosecute it. But where no bond is filed in time, the judgment of the district court is not vacated, and application should be made to the Superior Court to dismiss the appeal for want of jurisdiction.</p>

<p>In an action for a conversion, the omission from the declaration of an allegation of the plaintiff’s possession cannot he taken advantage of after verdict for the plaintiff on a motion for arrest of judgment, as the objection does not affect the jurisdiction of the court as required by Pub. Sts. c. 167, § 82. Moreover, in this case, there was evidence that the property converted belonged to the plaintiff, and the judge in his charge assumed this fact without objection from the defendant.</p> <p>In an action for the conversion of bonds, there was evidence, that the defendant falsely represented to the plaintiff that the spirit of the plaintiff's deceased husband spoke to her through the defendant as a medium, telling her to give the bonds to the defendant; that the plaintiff believed the representation and relying on it gave the bonds to the defendant; and that the deception was successfully kept up until a year before the action was brought, although some of the bonds had been delivered more than six years before the date of the writ. Held, that this evidence would warrant a jury in finding that there was a fraudulent concealment of the cause of, action under Pub. Sts. c. 197, § 14, and that the plaintiff could bring her action at any time within six years after she discovered that she had been duped. A defendant, who has fraudulently brought the plaintiff under such a delusion, cannot set up that the plaintiff had means of ascertaining the truth.</p> <p>In an action for the conversion of fifteen bonds of a certain company, evidence that the plaintiff paid par for three of the bonds and that the other twelve were of the same issue is sufficient to warrant the jury in finding that all of the bonds were worth par.</p> <p>In an action for the conversion of bonds found by the jury to have been obtained from the plaintiff by fraudulent representations of the defendant that the spirit of the plaintiff’s deceased husband through the defendant as a medium directed the plaintiff to deliver the bonds to the defendant, the defendant eatinot take the ground, that the deception was so obvious that the plaintiff, who found it out after many years, ought to have found it out before and therefore cannot rely on having been deceived by it.</p>

Petition to recover damages for land and buildings taken in January, 1895, for the extension of Columbus Avenue in Boston, filed January 1, 1896. This case was tried in the Superior Court, before Fessenden, J., and the jury returned a verdict for the petitioner for $12,416.25. The petitioner moved for a new trial on the ground of newly discovered evidence.

<p>Under Pub. Sts. c. 11, § 5, cl. 7, exempting from taxation “ houses of religious worship owned by a religious society,” land purchased by a religious society for the erection of a church thereon for which plans have been prepared is not exempt from taxation until the construction of the church has begun.</p> <p>A religious society purchased a lot of land containing 40,955 square feet on the corner of a suburban avenue, for the construction of a large stone church thereon, for which plans had been prepared. On account of insufficient funds, the construction of the stone church was not begun for more than two years thereafter, but upon one side of its intended site a small wooden church was built and used for worship, which on the completion of the stone church was to he removed to the corner of the lot to be used for a Sunday school. The assessors of the town, in the two years before the beginning of the construction of the stone church, assessed a tax on twenty thousand square feet of the lot, exempting from taxation the wooden church building and the remainder of the land, not designating by any line of division the land assessed and the land exempted. There was no fence on the premises except that enclosing the whole as one lot. Held, in an action by the society against the town to recover back the taxes assessed as above and paid under protest, that the burden was on the plaintiff to show that the whole lot was exempt from taxation, as, if any part of it was taxable, the plaintiff’s remedy was by application for an abatement; and that there was no error in assessing the tax upon the portion of the lot which was intended for the erection of the stone church, there being no house of religious worship nor any part of such a house upon it, and it not being shown that, the whole lot was needed for the small wooden church or that it was used as a reasonably necessary or proper incident to the maintenance and use of that church. Barker, J., dissenting, on the ground that the whole lot from the date of its purchase by the parish had been dedicated to public worship, and that the immediate erection and continued use of a temporary wooden church, and the prosecution with all reasonable promptness of the work of building a permanent church, were the same in legal effect as if the stone church had been begun when the wooden one was.</p>

<p>Under Pub. Sts. c. 197, § 15, providing, that an acknowledgment or promise, in order to take an action of contract out of the operation of the statute of limitations, must be “ made or contained by or in some writing signed by the party chargeable thereby,” and § 16 of the same chapter providing, that “ nothing contained in the preceding section shall alter, take away, or lessen the effect of a payment of principal or interest made by any person,” a part payment may be proved by oral evidence and the language accompanying the payment is admissible to show the intent with which it was made.</p> <p>In an action on a promissory note, where a part payment by the defendant is relied upon to take the case out of the statute of limitations, if it appears that after the period of limitation had expired the defendant made an oral promise to pay the note in monthly instalments of $10 each, and that he paid $5 under this agreement, the only promise that can be inferred from such payment is a promise to pay by instalments, and the plaintiff can recover only the instalments due at the date of his writ.</p> <p>Discussion by Hammond, J., of the law and authorities as to the character of the acknowledgment, promise or part payment required to take an action of contract out of the operation of the statute of limitations.</p>

<p>Two ACTIONS OF CONTRACT, the first brought by the administratrix of the estate of Harvey D. Hadloek, deceased, to recover a balance alleged to' be due from the defendant for services rendered by the plaintiff’s intestate as an attorney at law, in behalf of the descendants of Henry Gray in the case of Codman v. Brooks, reported in 159 Mass. 477, and 167 Mass. 499, and the second brought by John F. Merrow, to recover the amount of an order for $3,000, made by said Harvey D. Hadloek and accepted by the defendant. Writs dated June 14, 1898.</p> <p>The cases were tried together in the Superior Court, before Lawton, J. In the first case the plaintiff sought to recover on the ground that by the terms of his employment Harvey D. Hadloek was to and did render the services mentioned on the credit of the defendant, and that soon after the decision reported in 167 Mass. 499, the amount of Hadlock’s compensation was settled upon and fixed by him and the defendant at $8,000, and that the defendant agreed with Hadloek to pay it.</p> <p>The defendant contended that he had employed Hadloek on behalf and on the credit of the ten children of Henry Gray, who claimed to share in the fund involved in the litigation in Codman v. Brooks, and that Hadlock’s services in that case were rendered solely on their credit; also that the services were rendered under a champertous and illegal agreement. He denied that he had settled upon $8,000 or any other sum as Hadlock’s fee, or that he had agreed to pay that or any specific sum.</p> <p>It appeared that the defendant was counsel in the case of Codman v. Brooks for the ten children of Henry Gray, a deceased son of William Gray, the elder, the original sufferer, for the loss of whose ships through French privateers Congress had appropriated the fund in controversy in that case, held by Robert Codman as administrator of the estate of William Gray.</p> <p>Before 1893 the defendant had been appointed administrator de bonis non of the estate of Henry Gray, and had associated with him as senior counsel in that case the late Benjamin F. Butler. Shortly after General Butler’s death, which occurred in January, 1893, the defendant employed as his associate counsel Harvey D. Hadlock, who continued in the case until its final determination. Hadlock died in the latter part of April, 1897.</p> <p>The plaintiff called as a witness John F. Merrow, who testified that in the latter part of February, or the first part of March, 1897, he had a conversation with the defendant and Hadlock, in which they both told him that the case of Codman v. Brooks had been finally determined in the Supreme Judicial Court of Massachusetts, and that they had settled on the amount that Hadlock was to receive, and agreed on the sum of $8,000. He also testified that on other occasions after February 22, 1897, both the defendant and Hadlock told him that they had agreed upon the amount of Hadlock’s compensation as $8,000. The plaintiff introduced the testimony of one Greene, a former clerk of Merrow, to the same effect as that of Merrow.</p> <p>As further tending to show that Hadlock had given credit to the defendant for his services in Codman v. Brooks, and that the amount of his compensation had been fixed at $8,000, the plaintiff introduced in evidence the specifications under the declarations in six suits brought by the defendant severally against six of the children of Henry Gray to recover for services rendered and furnished by him in the case of Codman v. Brooks. In each of these cases there was a specification of one tenth of the services of Hadlock in the case of Codman v. Brooks, as furnished by the defendant, fixing the value of such tenth at $800.</p> <p>The defendant introduced evidence tending to show that he had authority from the ten children of Henry Gray to employ Hadlock in the case of Codman v. Brooks, on their behalf, and that Hadlock looked to them and not to the defendant as liable to him for his fees.</p> <p>The substance of the evidence in regard to the terms of Had-lock’s employment alleged by the defendant to be champertous and the contentions of the parties on this issue appear in the opinion of the court.</p> <p>The order and acceptance sued upon in the second case were as follows: “ Boston, June 2,1896. William Gray Brooks, Esq., Administrator of Henry Gray, deceased, and Solicitor of the children of said Henry Gray: Please pay to the order of John F. Merrow & Co. the sum of three thousand dollars when the final distribution is made of the sum due by virtue of an opinion of the Supreme Court of the United States, and in accordance with a mandate directed to the Supreme Judicial Court of the Commonwealth of Massachusetts within and for the county of Suffolk in the case of William Gray Brooks, Admr. et al. v. Robert Codman, Admr. et al., and charge the same to my account. Harvey D. Hadlock.”</p> <p>“ The foregoing order is hereby accepted. William Gray Brooks, Administrator and Solicitor.”</p> <p>The case of William Gray Brooks, Admr. et al. v. Robert Codman, Admr. et al., mentioned in the order, is the same case reported in 159 Mass. 477, and 167 Mass. 499, under the name of Codman v. Brooks.</p> <p>The defendant was as stated above administrator de bonis non of the estate of Henry Gray, named in the order, and in the case of Codman v. Brooks was solicitor for the ten children of Henry Gray, who were entitled to share in the fund referred to in the order.</p> <p>When this action was brought, .distribution of the entire sum referred to in the order had been made, except of the shares which at the date of the order were due to Charles R. Gray and Frederick W. Gray, two of the children of Henry Gray, which were held by Robert Codman as administrator of the estate of William Gray, the elder.</p> <p>The plaintiff maintained that he was entitled to recover, although these two shares had not been distributed, because he alleged that their distribution had been prevented by the defendant, and that the defendant had subsequently to the acceptance of the order agreed for a valuable consideration to pay the amount of the order at all events.</p> <p>The defendant contended, that the order was an assignment of so much of the fund belonging to the children of Henry Gray as on final distribution might come into his hands as administrator of the estate of Henry Gray, or as solicitor of his children, and not an undertaking by him to pay anything beyond what he so received in his representative capacity. He also contended that the order was given for the purpose of securing to the plaintiff payment of a part of the compensation which Harvey D. Hadlock was to receive for services as counsel in the case of Codman v. Brooks, rendered under a champertous and illegal agreement of which the plaintiff had knowledge. He denied that he had prevented the distribution of the two shares, and contended that he had done all in his power to collect them under assignments to him, but had been prevented from doing so.</p> <p>The plaintiff introduced in evidence copies of assignments from Charles R. Gray and Frederick W. Gray to the defendant. The defendant, called by the plaintiff as a witness, testified that he took assignments of two of the ten shares of the award and that the two papers were accurate copies of these assignments ; and that the assignors were two of the children of Henry Gray. The assignments were dated July 7, 1896, after the decision of the Supreme Court of the United States.</p> <p>It appeared that the six suits brought by the defendant against six of the ten children of Henry Gray, in which he sought to recover from each of them one tenth of the fees of Hadlock for services in Codman v. Brooks, as well as one tenth of his own fees for services in that case, were settled in May, 1898, by the payment of $5,500.</p> <p>The defendants°in those cases, before settlement, insisted upon a release by the administratrix of Hadlock, then deceased. A release was accordingly given, and $1,000 of the $5,500 was paid to Mr. Sampson, then acting as attorney for the administratrix, and who was also at that time the attorney for John F. Merrow, the present plaintiff, for the collection of the order here sued upon. Merrow personally knew nothing of the settlement of these six cases or of the payment of the $1,000 to Mr. Sampson until after the settlement and payment were made and was not consulted about it in any way.</p> <p>The other material evidence in the two cases, the rulings asked for and the instructions given are all stated in the opinion of the court.</p> <p>The jury found for the plaintiff in the first case in the sum of $2,850 and in the second case in the sum of $3,000; and the defendant alleged exceptions in both cases which are stated in the opinion of the court.</p>

<p>An agreement of compromise, made between the sole residuary legatee and executor under a contested will, of the first part, and the sole next of kin and certain family friends and servants of the testatrix claiming under former wills, of the second part, provided, that the will should be admitted to probate, and that 'the residue should be divided equally between the party of the first part and the parties of the second part, and that the party of the first part should "at the expiration of thirty days after the final allowance and probate of said will. . . convey, assign and transfer by proper instruments in writing . . . one half of all his interest in and to said estate, as residuary devisee and legatee under said will, to and among said parties of the second part to be held by them respectively in the same manner and in the same shares or proportions as the said one half of the said residue is hereinafter stipulated to be paid to them respectively.” The provision for the distribution of half of the residue among the parties of the sec- and part was on the basis that such one half would amount to $30,000. Payments amounting to $16,500 were to be made to the parties of the second part other than the next of kin, and the next of kin was to be paid $13,500 “ and also the excess of said one half said rest, residue and remainder over and above thirty thousand'dollarsi” There was also the following provision: “ If, however, said one half of said rest, residue and remainder shall not amount to thirty thousand dollars, then, and in that event, each and every payment hereinbefore to be made out of said one half, shall be abated pro rata.” The will having been allowed in accordance with the agreement, the executor, party of the first part, two years and a half later filed his final account by which it appeared that one half the net residue was more than $40,000, and that the property of the estate had increased in value more than $10,000 since the allowance of the will. It appeared, however, that there had been no increase in value after the expiration of two years from the time of the executor’s appointment. Held, that by the true construction of the agreement of compromise the next of kin was entitled to the balance of one half the net residue of the estate after paying to the other parties of the second part the sums specified in the agreement to be paid to them, that the purpose of the conveyance to be made by the residuary legatee thirty days after the allowance of the will was to give to the parties of the sec- and part one half of his interest as residuary legatee and the right to receive their respective shares thereof when the time for distribution should arrive, and that the executor was entitled to the ordinary period of two years in which to pay the debts and legacies and ascertain the residuum, and, the increase in the value of the property all having occurred within that time, the parties of the second part other than the next of kin had no interest in it, and that the provision in the agreement, that in case one half the net residue should turn out to be less than §30,000 all the payments to the parties of the second part should abate ratably, did not affect the construction of the express provision, that in case one half turned out to be greater than §30,000 the next of kin was to have “ the excess.” Meld, also, that the parties of the second part other than the next of kin were not entitled to interest after the expiration of one year from the death of the testatrix on the sums to be paid to them under the agreement, since these sums were paid not as legacies but as part of the residue, and the money was not wrongfully detained.</p>

<p>Bill in equity by the assignee of a second mortgage, to redeem certain land in Arlington from a sale purporting to have been made under a power of sale in a first mortgage thereon, filed February 15, 1899.</p> <p>The case was heard in the Superior Court on agreed facts and certain oral evidence by Sheldon, J., who made a decree, declaring the plaintiff entitled to redeem the lots described in his bill from the first mortgage, and referring the case to a master to state the account. From this decree the defendant Frank W. Wunderlich, who as assignee of the first mortgage had made the sale in question, and the defendant William Craig, the purchaser at such sale, both appealed.</p> <p>It appeared from the agreed facts, that the land sought to be redeemed consisted of three lots numbered respectively 27, 28 and 32 on a certain plan. The first mortgage, dated December 2, 1891, conveyed four lots consisting of the three lots already named and another lot numbered 24. The amount originally secured by this mortgage was $2,000, but on March 18, 1892, a part payment of $1,200 was made and in consideration thereof the mortgagee released lot 24 from the mortgage, leaving the other three lots as security for the balance of $800 still due.</p> <p>On June 13, 1894, the defendant Wunderlich acquired the first mortgage by assignment. He was then and has since continued to be in the employ of the defendant Craig. ' In June, 1894, there was on lot 24 a house worth about $2,500. Lots 27, 28 and 32 were vacant and have remained so.</p> <p>The first mortgage contained a power of sale with a provision, that in case of default the mortgagee or his assigns might “ sell the granted premises or such portion thereof as may remain subject to this mortgage in case of any partial release hereof.”</p> <p>On or about June 25,1894, the first mortgage being overdue, the defendant Wunderlich instructed D. D. Corcoran, Esquire, an attorney at law, to foreclose the mortgage. Mr. Corcoran, not knowing of the release of lot 24 from the operation of the mortgage, advertised the premises described in the mortgage for sale on July 26,1894. After Mr. Corcoran had published this notice he was informed that lot 24 had been released from the mortgage, and at the sale of the premises on July 26, 1894, the auctioneer just before the sale said to those present that lot 24 had been released, and that he should only sell lots 27, 28 and 32. He thereupon sold the last named lots to William Craig for the sum of $1,000, Craig, by his agent, Wunderlich, being the highest bidder at the sale, and within thirty days from the time of the sale a deed of the lots was executed and delivered by the defendant Wunderlich to the defendant Craig. There were present at the sale only the auctioneer, Mr. Corcoran and the defendant Wunderlich.</p> <p>The judge in making the decree appealed from added the following report of facts :</p> <p>“ In addition to the agreed facts, I find that there was no fraud on the part of either of the defendants in the attempted foreclosure of July, 1894; that neither defendant knew of the plaintiff’s second mortgage on the lots in question; that the price realized at the foreclosure sale could not be said to have been an inadequate one, though it may have been a little under the full market value of the property; and that the defendant Wunderlich began a new foreclosure in January, 1899, as averred in the plaintiff’s bill for the sole reason that his grantee’s title had on an examination been deemed unsatisfactory by a lawyer, and that he abandoned these proceedings on the filing of the plaintiff’s bill. It did not appear when the plaintiff learned of the foreclosure of July, 1894. The plaintiff never paid or offered to pay to the defendant Wunderlich any part of the principal or interest on the mortgage held by him. The plaintiff bank in its entry of September, 1895, to foreclose its mortgage, was represented by Sanford H. Dudley, a lawyer residing in Cambridge and doing business in Boston in this Commonwealth. The plaintiff did nothing to enforce its alleged rights until the filing of this bill in February, 1899. There has been no change in the title to the property since the foreclosure sale of July, 1894. No explanation is made of the plaintiff’s delay in seeking redress, except that it filed its bill on learning that the defendant Wunderlich had begun a new foreclosure in January, 1899.”</p> <p>The case was argued at the bar in December, 1900, and after-wards was submitted on briefs to all the" justices.</p>

<p>Upon a first mortgage to secure a building loan of $20,000 a bank advanced $15,000 and retained $5,000 under an agreement with the mortgagor “ until the said building shall be in such progress to completion that the mortgagee shall deem it safe to advance said balance.” A second mortgagee acquired the equity in the property by foreclosure, and brought a bill to redeem from the first mortgage. The bank had paid out the whole of the $5,000 retained by it upon orders from the mortgagor, leaving the amount of $450 due to it for interest. It was contended by the second mortgagee that the bank ought to have applied the amount of $450 to the payment of this interest from the $5,000 retained by it, and could not require that sum to be paid by the second mortgagee in redeeming from the bank’s mortgage. Held, that, the bank was not bound thus to apply the money in its hands, that the $5,000 was not additional security but was part of the sum lent, retained to ensure the completion of the building, and that the rule, requiring a prior encumbrancer with two securities first to resort to that on which the subsequent encumbrancer'has no lien, did not apply. Whether the bank lawfully could have set off the sum of $450 against the interest due it without the consent of the mortgagor, quaere.</p>

<p>In computing the five years from the sale within which a bill to redeem land from a tax sale must be brought under St. 1888, c. 390, § 76, the day on which the sale was made is to be excluded.</p> <p>A bill to redeem land from a tax sale brought under St. 1888, c. 390, § 76, is a cause which may be revived by citing in the administrator of a party who- has died.</p> <p>The right to maintain a bill to redeem land from a tax sale under St. 1888, c. 390, § 76, is not limited to the owner or mortgagee who was such at the time of the tax sale, and where an owner of land, which previously had been sold for taxes without his knowledge, sold and conveyed the land and took a mortgage back, and subsequently on learning of the tax sale brought a bill to redeem under St. 1888, c. 390, § 76, and died, it was held, that the purchaser from the deceased had such an interest that he could have been admitted to prosecute the suit in the name of his grantor before his death if for any reason the grantor had declined to go on, and on the grantor’s death could have procured the revival of the suit under Pub. Sts. c. 165, § 19, and proceeded in the name of his grantor’s administrator, and therefore that such purchaser by an amendment of the bill properly could be made a plaintiff in the suit brought by his grantor, and that the five years within which the suit could be brought were to be reckoned as to him from the filing of the original bill.</p> <p>One, who without consideration takes a conveyance of land from the purchaser thereof at a tax sale, holds the land as trustee for the party entitled to redeem, and is properly made a party to a bill to redeem, with no rights beyond those of his grantor.</p> <p>In a suit to redeem land from a tax sale brought under St. 1888, c. 390, § 76, it appeared, that the defendant was a purchaser of tax titles, and there was evidence tending to show, that he intentionally avoided a tender during the two years after the tax sale, and thereafter refused to release except upon payment of a bonus, and that the plaintiff from the time of his discovery of the tax sale had endeavored to find the defendant and make tender before the two years had expired, and thereafter had been reasonably diligent in his efforts to obtain a release. Held, that the evidence warranted a finding that the plaintiff was entitled to relief, and that, the plaintiff having been always ready to redeem, the conduct of the defendant dispensed with the necessity of an actual tender.</p> <p>Sections 46, 58 and 59 of St. 1888, c. 390, providing, that when the purchaser of land sold for taxes cannot be found after reasonable search, the owner seeking to redeem may make payment of the required sum to the treasurer of the town in which the land is situated, give a cumulative remedy, and do not exclude the right to equitable relief under § 76 of the same chapter.</p>

<p>A bill to redeem land from a tax sale was amended by adding a prayer that the tax deed should be declared void and the defendant ordered to execute a release to the plaintiff. Held, on demurrer, that the bill was not multifarious by reason of tlie inconsistent nature of the relief sought, the case being one, not where different causes of action were joined but where alternative forms of relief were prayed for in respect to one and the same cause of action.</p> <p>In a suit to redeem land in Boston from a tax sale brought by the purchaser of the land at a foreclosure sale, it was held, that upon the issue whether the owner, a married woman, was a non-resident when the tax sale was advertised, evidence, that the owner’s husband was taxed in that year as a resident of Revere and was not assessed in Boston, was not admissible, as the suit was between third parties neither of whom claimed through the person taxed, and also because the evidence would not have been admissible against the husband himself. Under St. 1888, c. 390, § 30, a demand for payment within fourteen days must be made upon a resident owner before his land can be sold for taxes. Section 33 of the same chapter in regard to non-resident owners does not require such demand. Section 43 of the same chapter requires that a tax deed shall.state the cause of sale. A tax deed stated as the only cause of sale that, the owner of the land being a non-resident in the city and the taxes still remaining unpaid, the land,was duly advertised for sale. In fact, the owner was a resident and a demand for payment within fourteen days had been made, but this was not stated in the deed. Held, that the deed was void for non-compliance with the statute.</p> <p>The right of a mortgagee to redeem from a tax sale is not lost by foreclosure and passes to a purchaser at the foreclosure sale.</p>

Petition by a manufacturing corporation to the Superior Court under St. 1890, c. 127, appealing from a decision of the assessors of the city of Lowell refusing to make an abatement in a tax upon the real and personal property of the petitioner in that city alleged to be excessive by reason of the over-valuation of the property assessed, filed June 6, 1898.- In the Superior Court the case was heard, upon the report of a commissioner appointed under the provisions of St. 1890,…

<p>Two PETITIONS to the Superior Court for a jury to assess damages for the taking of certain alleged water rights by the respondent under its charter, St. 1897, c. 338, filed October 19, 1898.</p> <p>At the hearing in the Superior Court, before Braley, J., the respondent moved to dismiss the petitions for want of jurisdiction of that court on the ground that no application had been made in the first instance to the county commissioners of Middlesex County for an estimate of the damages suffered by the petitioners, and that it did not appear that the county commissioners had ever made any estimate of such damages, or that the petitioners were' in fact or in law aggrieved by the doings of the county commissioners in the estimate of their damages. It was agreed that in fact no application had been made to the county commissioners for the assessment of damages. It appeared that the respondent first actually withdrew and diverted the water under authority of its charter, in November, 1897.</p> <p>The judge ruled that the Superior Court had no jurisdiction, and dismissed the petitions. To this ruling the petitioners excepted, and, at the request of the parties, the judge reported the cases for the determination of this court.</p> <p>The cases were submitted on briefs to this court on March 6, 1900, and on May 17, 1900, a rescript was handed down in each case sustaining the ruling of the Superior Court and directing an entry in that court in each case as follows: “ Petition dismissed.” The reason of the decision was stated therein as follows : “ The petitioner should first have made application to the county commissioners.” The opinion of the court is reported in 176 Mass. 118.</p> <p>Between the time of the submission of the cases on briefs and the handing down of the rescripts, the Legislature on May 4, 1900, passed St. 1900, c. 299, which reads as follows: “ Section 1. No petition now or hereafter pending in the superior court for the assessment by a jury of damages sustained by any person by reason of any taking of property in the exercise of the right of eminent domain shall be dismissed for want of jurisdiction in said court solely on the ground that no previous application for the assessment of such damages had been made to a board of county commissioners, or that no award thereof had previously been made by a board of county commissioners. The superior court shall have jurisdiction to hear and determine all such petitions now or hereafter filed or pending therein, notwithstanding the lack of such previous application to or award by a board of county commissioners. Section 2. This act shall take effect upon its passage. Approved May 4, 1900.”</p> <p>Subsequently, the existence of the statute having been brought to the attention of the court, by agreement of the parties in both cases a rehearing was granted on the question of the effect of the act upon these cases.</p> <p>The charter of the respondent contained the following "provision : “ Said corporation shall pay all damages .sustained by any person in property by the taking of any land, right of way, water, water source, water right or easement, or by any other thing done by said corporation under the authority of this act. Any person sustaining damages as aforesaid under this act, who fails to agree with the said corporation as to the amount of the damages sustained, may have the damages assessed and determined in the manner provided by law when land is "'taken for the laying out of highways, on application at any time within one year from the taking of such land or other property or the doing of other injury under the authority of this act; but no such application shall be made after the expiration of the said one year. No application for the assessment of damages for the taking of any water, water right or water source, or for any injury thereto, shall be made until the water is actually withdrawn or diverted by the said corporation under the authority of this act.” St. 1897, c. 338, § 4.</p> <p>Under this section the petitioners’ right to apply for the assessment of their damages expired in November, 1898, one year from the time when the water was actually withdrawn or diverted by the respondent, so that if their present petitions were dismissed they would be without remedy.</p>

<p>Contract to recover the sum of $500, alleged by the plaintiff to have been promised to him by the defendant in consideration of the withdrawal of his objections to the allowance of the third codicil to the will of one Nathaniel Springfield. Writ dated May 29,1899.</p> <p>The answer contained a general denial and also alleged that the contract declared on was void as being against public policy.</p> <p>'At the trial in the Superior Court, before Bond, J., it appeared, that Nathaniel Springfield, formerly a slave, came North before the Civil War, and died testate on December 17, 1896, leaving an estate of about $80,000; that the plaintiff was the only child of a deceased daughter of Springfield, whose only other next of kin was a son, Theophilus Springfield; that his will with three codicils was presented for probate by the executors therein named, Henry A. Halliday and William H. Colley, the defendant; that Theophilus Springfield and the plaintiff appeared and opposed the probating of the will and codicils; that the Probate Court admitted the will and codicils to probate ; that Theophilus Springfield and the plaintiff appealed to the Supreme Judicial Court; that at the hearing of the case before Lathrop, J., issues were framed for the jury in regard to the third codicil only; that the issues and the answers thereto were as follows: “First Issue. Was the instrument which is offered for probate as the third codicil to the will of the said Nathaniel Springfield, and dated July 17, 1896, duly executed by him as and for a third codicil to his last will ? Answer. Yes. Second Issue. Was the said Nathaniel Springfield, at the time ” of the execution of said third codicil, of sound mind? Answer. No. Third Issue. Was the said Nathaniel Springfield induced by the fraud or undue influence of William H. Colley or Henry A. Halliday to execute said third codicil? Answer. Yes, as to William H. Colley. No, as to Henry A. Halliday” ; that on motion of the executors to set aside the verdict on the second and third issues as against the evidence and the weight of evidence, the justice set aside the verdict on those issues and granted a new trial; that shortly before the new trial took place one Thomas E. Bowser was appointed guardian of Theophilus Springfield, who was weak minded, and William Schofield was appointed guardian of unborn children of Theophilus and the plaintiff; that at the following term, April, 1898, when the case came on for trial, a writing signed by the present plaintiff was presented to the court by the counsel for the present defendant, stating in effect that the plaintiff withdrew his appeal and waived his objections, and thereupon the will and codicils were allowed; and that the court was not informed of the alleged contract. These facts were not disputed.</p> <p>The plaintiff testified in substance that early in February, 1898, after the verdict had been set aside and a new trial granted, and about seven weeks before the case came on again for trial, the defendant promised to pay him $300 in money and give him $200 to start in business, if he would waive his objections to the third codicil; that he accordingly withdrew his appeal in writing, and consented to the probating of the will, but the defendant had refused to pay him any part of the money promised.</p> <p>The defendant denied that he had made any agreement to pay the plaintiff $500 or any sum whatever to waive his appeal, and alleged that the plaintiff had done it voluntarily.</p> <p>The defendant’s counsel made the following requests for rulings : 1. That the contract set forth in the plaintiff’s declaration is against public policy. 2. That upon all the pleadings and evidence in the case the contract set forth and testified to by the plaintiff is void as against public policy.</p> <p>These rulings were refused by the judge, and the defendant excepted.</p> <p>The judge instructed the jury that if they were satisfied upon the evidence that the defendant had promised to pay the plaintiff $500 as testified to by the plaintiff if he would waive his objections to the third codicil and the plaintiff did waive his objections, it would be a valid promise and the plaintiff would be entitled to recover. The defendant excepted to this instruction.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Under St. 1888, c. 131, giving the town of Brookline.authority to take additional water from Charles River, that town established waterworks upon the division line between the counties of Norfolk and Suffolk. St. 1872, c. 343, § 6, incorporated by reference in the above named act, gave to persons sustaining damages under the act the right to apply for an assessment thereof by petition to the Superior Court in the county in which the dams or other works occasioning such damages were situated. Petitions to the Superior Court under this section by owners of water powers and mill privileges upon the Charles River were filed simultaneously in both counties, and orders of notice thereon were served on the town, those on the petitions in Norfolk County being issued and served nine days before those on the petitions in Suffolk County. The petitioners then filed in each county motions for the appointment of commissioners to assess their damages under the section above named. On motion of the town, the Superior Court ordered the petitions in Suffolk County to be dismissed on the town’s filing an admission that it was liable in Norfolk County, if at all. Held, that the order dismissing the petitions in Suffolk County was erroneous, as the petitioners had the right to elect in which county to proceed, that they had not done so merely by taking out the orders of notice upon their petitions in Norfolk County first, and that the court by its action had in effect given the respondent the election which belonged to the petitioners. Semble, however, that the damages occasioned by taking water under St. 1888, c. 181, cannot be divided into those caused by the part of tile town’s waterworks in Norfolk County and those caused by the other part of the same works in Suffolk County, but that the whole damage must be assessed under one petition, in one county or the other at the election of the petitioners.</p>

<p>In an action by an experienced workman to recover for injuries from the fall of a bar of steel caused by the breaking of a defective link in the chain supporting it, it appeared, that the plaintiff attached the chain to the bar which then was hoisted by means of a crane, the plaintiff steadyirtg the bar with his hand. While he was doing this the link next to the hook broke and the plaintiff received his injuries. The chain used was the only one which reasonably could have been used under the circumstances. It was made in the defendant’s works by a fellow servant of the plaintiff, and the defect in the link was due to its being made from old iron instead of new. Held, that a verdict for the plaintiff was justified; that the defendant was responsible for the use of due care in preparing a safe appliance for the plaintiff’s use, and the chain was a permanent instrument provided for the very purpose for which it was used when it broke, and was not worn out but broke from inherent defects that should have been avoided in its making and could not be detected by inspection; and that it was no defence that the proximate cause of the breaking of the permanent appliance was the- negligence of a fellow servant in making it. Held, also, that the fact that the plaintiff was under a suspended weight which would crush him if it fell did not necessarily establish negligence on his part, and on the facts proved he would have- been safe under the bar if the link had been made of new iron as it should have been.</p> <p>Eor a presiding judge to state his recollection of the evidence is not charging the jury with respect to matters of fact.</p>

Contract upon the covenants against encumbrances and of warranty in a deed given by the defendant to the plaintiff June 20,1896, conveying certain premises on Burbank Street in Boston. Writ dated August 4,1900.

<p>Semble, that the right to use a word as a trade-mark does not depend on originality even as against the "originator of the peculiar use. Per Holmes, C. J.</p> <p>A manufacturer of shoes in Massachusetts adopted a label with the word “ Knickerbocker” as a general mark for his goods or a large variety of them, although he also used other marks for goods made to order for particular firms. Two years later his factory was burned, and he went out of business and for four years was in the employ of others as a salesman in other States. At the end of that time he resumed business for himself in Philadelphia selling the goods of a New Jersey company as a jobber, adopted the title “ Knickerbocker Shoe Company ” and used the word “ Knickerbocker ” on his packages with a label similar to the one he formerly used. He testified that he never had intended to abandon the use of the word “ Knickerbocker ” as a trade-mark regarding it as a valuable possession and that he resumed it at the first opportunity. During the four years that this former manufacturer was working for others, the word “ Knickerbocker ” had been adopted as a trade-mark by another manufacturer of shoes. In a suit brought by the last named manufacturer against the first named for alleged infringement of his trade-mark, it was held, that the judge who tried the case was warranted in finding, that the defendant had made the word “Knickerbocker” a trade-mark, that he had not abandoned it, and that his present use of it was within the scope of his original acquisition.</p>

Tort by a lineman in the Boston fire alarm department to recover for personal injuries alleged to have been caused by his receiving a shock from an electric light wire belonging to and controlled by the defendant upon a pole of the defendant which the plaintiff was climbing for the purpose of repairing a fire alarm wire. Writ dated July 15, 1898. The declaration as amended contained two counts.

<p>Bill in equity by the executrix of the will of John M. E. Gilson, late of Groton, for instructions, filed August 29, 1899.</p> <p>The bill alleged, that John M. E. Gilson died on April 28, 1898, leaving a will dated February 5, 1895, which will was duly proved and allowed June 7, 1898 ; that by the will the testator appointed the plaintiff executrix in the following terms : “ I do hereby nominate and appoint my daughter Fanny E. Woods to be executor of this my last will and testament and to hold in trust the amounts mentioned in one and two of this will for the benefit of my wife and daughter Lillian Drake and I authorize and empower her to sell and convey all my real estate ”; that the plaintiff was appointed executrix of the will by the Probate Court and duly qualified as such; that the deceased left at the time of his death as his only heirs at law and next of kin the persons whose names and relationship are as follows : Lillian Drake, Mary E. Sears, Lucy E. Hynes, Fannie E. Woods, John E. Gilson, F. Earland Gilson, William M. Gilson and George H. Gilson, all children of the testator; that the widow, Elizabeth A. Gilson, wife of John M. E. Gilson, survived him and died August 9,1898, leaving a will, and that her executors are named as defendants, and that, the children of the testator’s son John E. Gilson are named as defendants, also the children of the testator’s daughter Lillian Drake;</p> <p>That the testator by the first clause of his will provided as follows: “ I give and bequeath to my beloved wife Elizabeth A. Gilson the interest at four per cent of two thousand dollars during her natural life at her decease to be paid to my daughter Fannie E. Woods ” ;</p> <p>. That the testator by the second clause of his will provided as follows: “ I give and bequeath to my daughter Lillian Drake wife of Willie Drake of Fitchburg the interest at five per cent of two thousand dollars during her natural life also one thousand dollars to be paid to her as her necessities may demand at her decease said amount to be equally divided among her children then living ” ;</p> <p>That the testator by the third clause of his will provided as follows: “ I give and bequeath to my daughter Mary E. Sears wife of Philander Sears a mortgage and note on my Fletcher Farm for twenty-five hundred dollars” ; that the testator at the time of his death and for many years before was seised in fee of a certain farm known as the Fletcher Farm, in Groton, the value of which, according to the inventory on file in the Probate Court is $3,200; that on June 30, 1890, the testator made a mortgage and note for $2,500 on the Fletcher Farm; that at the time the mortgage and note were executed they were left in the possession of the justice of the peace who drew them; that after the execution of the note and mortgage the testator visited the justice who had custody of the note and mortgage and caused to be written upon the mortgage note the following words: “No interest to be paid until after my decease” ; that after the decease of the testator the note and mortgage were found in the possession of the justice who drew them and came into the possession of the plaintiff as executrix ; that on June 25, 1898, the plaintiff delivered the note and mortgage to Mary E. Sears, and took from her a receipt; that thereafter Mary E. Sears caused the mortgage to be recorded; and that Mary E. Sears asserts that by the delivery to her of the mortgage and note she has a valid mortgage and note in accordance with the terms of those instruments; and she further asserts that, in case the mortgage and note are not valid in accordance with their terms, she has a valid claim as legatee for the sum of $2,500 and interest to be paid by the executrix and to be charged upon the Fletcher Farm;</p> <p>That the testator by the fifth clause of his will provided as follows: “ I give and bequeath and devise to my son John E. Gilson the use and income of my Fletcher Farm above the mortgage given to my daughter Mary E. Sears during his natural life at his death to be equally divided among his children then living ”;</p> <p>That the testator by the ninth clause of his will provided as follows: “ I give bequeath and devise to my daughter Fanny E. Woods wife of Augustus Woods my home place and my meadow lot bought of Jane Pollard after paying the legacy given in article second of this will to my daughter Lillian Drake and also the interest to be paid to my wife mentioned in article first in this will ” ; that at the time of his decease and for many years before the testator was and had been seised in fee of the real estate mentioned in clause nine of the will, known as the home place and meadow lot; that it is a farm of about forty acres situated in Groton, and its appraised value, according to the inventory now on file in the probate court, is $4,800;</p> <p>That the testator by the tenth clause of his will provided as follows: “ I give bequeath and devise all the rest and residue of my real and personal estate of every kind and description to be equally divided to my son Earland F. Gilson * and my daughter Fannie E. Woods wife of Augustus Woods”;</p> <p>That the personal estate of the testator according to the inventory is $18,593.38, and the real estate $11,415, making a total of $30,008.38.</p> <p>The prayers for instructions were as follows:</p> <p>“1. And the plaintiff prays to be instructed under clause one of said will what amount shall be paid, if any, to the executors of the will of Elizabeth A. Gilson; whether or not said amount shall be chargeable upon the real estate mentioned in clause nine; what sum of money is to be paid to the plaintiff under clause one; shall the same be paid from the residuary fund, or however else shall the same be paid?</p> <p>“ 2. Under clause two shall a trust fund be created, and. for how much? Who shall hold the same? Shall said trust fund be set apart from the residue of the estate, or how shall the same be raised? Who is to be judge of the necessities mentioned as a condition precedent to the payment of one thousand dollars therein named? ■ What sum of money is to be paid to Lillian Drake when her necessities demand such payment, if ever, and until her necessities demand payment what shall be done with the trust fund, principal and interest, and how shall the same be raised?</p> <p>“ 3. Under clause three whether the gift of a mortgage of twenty-five hundred dollars and the circumstances attending the same create a valid mortgage according to the language of the testator ? Or whether the plaintiff shall pay to said Mary E. Sears twenty-five hundred dollars or any sum whatever ? Is said mortgage or said sum of twenty-five hundred dollars chargeable upon the Fletcher Farm mentioned in clause five ?</p> <p>“ 4. Under clause five whether or not the mortgage given by clause three of said will is a valid encumbrance upon the property given to John B. Gilson by clause five? If it is, what is the legacy to John E. Gilson? If the court should decide that it is not, shall your petitioner sell said real estate and pay any sum or sums to Mary E. Sears, and pay any sum said farm might bring above said legacy to said John E. Gilson ?</p> <p>“ 5. Under clause nine, if the one thousand dollars mentioned in clause two should become payable, whether the same should be payable from the real estate mentioned in clause nine, or shall the same be paid from the residuary fund ? How much and what parts (if any) of the bequests mentioned in clause two are chargeable upon the real estate bequeathed to the plaintiff under clause nine? Shall said bequests be paid from the residuary fund, or however else shall the same be paid ?</p> <p>“ And the plaintiff further prays for such instructions as will enable her to execute the trust reposed in her by the eleventh clause of said will in a legal manner.”</p> <p>In addition tó the facts stated in the plaintiff’s bill which were admitted in the several answers, the following facts were agreed:</p> <p>Subsequently to the testator’s death and before the time when Mary E. Sears received the note and mortgage on the Fletcher Farm, she received a copy of the note and mortgage, and at the time of receiving the note and mortgage was informed that they had been in the custody of the justice of the peace who drew them, and had been by him delivered to the plaintiff; and that the will had been duly probated.</p> <p>The case came on to be heard before Holmes, C. J., who at the request, of all the parties reserved it for the consideration of the full court.</p>

<p>In an action by an indorsee of a promissory note against the maker, the defendant undertook to show that the note was without consideration as between the maker and tlie payee and that the plaintiff took it from the payee after maturity. The payee and indorser of the note who was a brother of the maker appeared as a witness for the defendant. In the course of his cross-examination the plaintiff’s counsel produced a paper, showed it to the witness, and asked the question: “ Will you swear that is not a copy of the entry from your own journal ? ” The witness answered “ Well, I haven’t my journal. I can’t swear to copies of entries in my journal.” The cross-examining counsel then put the question: “ If your journal contains this entry: Bank of England, September 12, 1896, two hundred pound and six hundred and six pounds, ten shillings, eleven pence, paid A. Gordon, to go against which is the note of $3,871.42, payable in any bank in Massachusetts, — don’t you suppose there v/as a transaction behind it?” and the witness answered “I cannot swear anything about my journal.” The paper was not put in evidence. Held, that the foregoing question was a natural and legitimate step in the cross-examination, and that it did not assume or imply that there was such an entry, and that it was competent for the jury to consider the answer of the witness on the question of his credibility.</p> <p>In an action by an indorsee of a promissory note against the maker, the defendant undertook to show that the note was without consideration as between the maker and the payee and that the plaintiff took it from the payee after maturity. The payee and indorser of the note who was a brother of the.maker appeared as a witness for the defendant. In the course of his cross-examination the plaintiff’s counsel produced a paper and asked the witness “And on the same date you signed the paper of which that is a copy ? ” The answer was “I don’t know. I can’t say,” and the paper was not offered in evidence. The plaintiff’s counsel was then permitted, against the defendant's objection, to ask the following question : “ Did n’t you go to the Bank of England with Mr. Kekewich or some representative of that firm and Mr. Leland, and there do what was said to be necessary in order to transfer to Mr. Leland all that you had in the Bank of England in the way of money and accounts and notes and papers ? ” The witness replied “I signed something in the Bank of England.” Mr. Leland was the treasurer of the plaintiff, a corporation. Held, that the question related to the character of a certain transaction and not to the contents of a written instrument, and that if the answer meant that the witness did not sign anything conveying the note, then the question and answer did no harm, whereas if the answer was an implied admission that he did sign a paper necessary to convey the note, tlién the answer was admissible, not as tending to show the contents of a written instrument, but as tending to affect the credibility of the witness’s previous statement, that the note was always under his control as long as it remained in the Bank of England,</p>

Writ oe entry demanding possession of a parcel of land on the northerly side of Wentworth Street in Malden, filed March 1, 1900. In the Superior Court, the case was heard by Bond, J., upon the following agreed facts: The demandant and the tenant were the owners in fee of adjoining estates. The land demanded was a strip of land about one hundred and twelve feet long and from three to four feet wide and enclosed by the tenant’s fence with the land claimed and occupied by her.

Tort, with a count in contract, to recover for injury to the plaintiff’s dock in ward six in Boston alleged to have been caused by the negligence of the defendant’s agents and servants while constructing a recreation pier in that ward under St. 1893, c. 282. Writ dated June 15, 1899. At the hearing in the Superior Court upon agreed facts, judgment was ordered for the plaintiff, and the defendant appealed.

<p>Contract for money had and received, to recover the amount paid by the plaintiff through the Boston clearing-house on a note of the Boston Woven Hose and Rubber Company indorsed by the Lawrence National Bank and by the defendant. Writ dated August 24, 1898.</p> <p>The case was heard in the Superior Court by Hopkins, J., who found for the plaintiff and reserved the case for the consideration of this court. This court in a decision reported in 176 Mass. 300, ordered that the report should be discharged, that the defendant might have an opportunity to present to the Superior Court a motion for an amendment of the report or for such other action in the premises as it might be advised to pursue.</p> <p>The report originally concluded as follows : “ The case is now reported to the Supreme Judicial Court. If, as matter of law on the foregoing facts, the plaintiff is not entitled to recover, judgment is to be entered for the defendant; otherwise judgment is to be entered upon the above finding for the plaintiff.”</p> <p>After the report was discharged by order of this court, the defendant presented in the Superior Court to Hopkins, J., a motion to amend the original report by striking out in -the conclusion thereof the words, ‘‘if as matter of law on the foregoing facts, the plaintiff is not entitled to recover,” and substituting therefor the words, “ if the said rulings of law and refusals to rule, or any of them are wrong,” so that said report should conclude as follows : “ If the said rulings of law and refusals to rule, or any of them are wrong, judgment is to be entered for the defendant, otherwise judgment is to be entered upon the above finding for the plaintiff.”</p> <p>The plaintiff at the same hearing presented a motion to amend the original report by making certain additions to the testimony reported.</p> <p>The judge reported his action on these motions as follows: “ I denied the plaintiff’s motion and allowed the defendant’s motion to amend, understanding that no other course was open to me under the last paragraph of the opinion of the Supreme Judicial Court in this case.” The case came again before this court on the amended report.</p> <p>On the day that the plaintiff bank paid the note, through the settlement of its daily"balance at the clearing-house, it found out that the Boston Woven Hose and Rubber Company had made an assignment, and sent back the note to the defendant bank, but this was at or about three o’clock p. M., after banking hours, although the defendant bank happened to be open. The clerk there refused to receive it. At ten minutes before one o’clock, time had been asked for by the Hose Company and granted by the plaintiff. There was evidence, that there was" a rule or custom that notes must be returned before two o’clock or, if time was given, at two o’clock. These and other facts appearing by the report are stated at length in the opinion reported in 176 Mass. 300, and conclusions of fact warranted by the evidence are stated in the present opinion.</p>

Bill in equity by William S. Whiting against Herman F. •Burkhardt, Albert L. Jewell and the North British and Mercantile Insurance Company, to recover as mortgagee for a loss by fire to property covered by the mortgage and situated in Hull, Massachusetts, the property at the time of the loss being covered by a policy of insurance issued by the defendant insurance company, and the proceeds of the policy being claimed by each of the other two defendants, if the plaintiff was…

<p>Bill in equity by a trustee in bankruptcy of the estate of James H. Wentworth of Newton against George E. French of Newton, Charles W. Boynton of Bedford and others, praying that a transfer made by Wentworth to French and Boynton on July 14, 1898, of one hundred and ninety-eight shares of the capital stock of the J. H. Wentworth Company be adjudged to be in fraud of the provisions of the United States bankruptcy act and a fraud upon the creditors of Wentworth and on the plaintiff as representing them and that the defendants be ordered to transfer the shares of stock to the plaintiff, filed May 17 and amended October 4, 1899.</p> <p>■ The case was heard in the Superior Court by Mason, C. J., who ordered a decree dismissing the bill with costs. The plaintiff appealed. The evidence had been taken by a commissioner appointed under Equity Rule 35. The plaintiff requested a report of facts under St. 1883, c. 223, § 7. • The judge began his report of facts as follows:</p> <p>“ In tins case a commissioner to take evidence was appointed under Rule 35 at the request of both parties. The plaintiff, having appealed from the decree entered, now within the time required by the statute requests under section 7 of St. 1883, c. 223, a report of the facts found. Being in doubt whether the appellant has the right to combine the two methods of taking the case to the full court or at this stage to substitute a report of facts found for a report of the evidence, in order that no rights may be denied this report is made.”</p> <p>After stating other findings, the report concluded as follows: “ The defendant French was at the time of the transfer on July 14, 1898, a secured creditor, and for everything which he received beyond the security which he already held he paid full value and the transfer was not a preference and was not in violation of the bankrupt law.</p> <p>“ The bill does not contain specific allegations with reference to the payment and conveyance to the wife of J. H. Wentworth and the evidence does not disclose fully the circumstances under which the same were made. The court does not find that there was any fraud of creditors in such payment and conveyance.”</p> <p>The evidence upon which this court founded its decision is described in the opinion.</p>

<p>Two petitions by and in behalf of Luigi Storti, convicted of murder in the first degree and sentenced to death, one for a writ of error and the other for a writ of habeas corpus, both filed April 30, 1901.</p> <p>The prisoner at the time of filing the petitions was held by the warden of the State prison, having been sentenced to suffer death by electricity under St. 1898, c. 326, at some time in the discretion of the warden within the week beginning April 7, "1901, which by respite had been extended to some time within the week beginning May 12,1901.</p> <p>The question raised by both petitions was whether the punishment inflicted by the statute is cruel or unusual in violation of article 26 of the Massachusetts Declaration of Rights. The material sections of the statute are as follows :</p> <p>“ Section 2. When a person is sentenced to the punishment of death he shall be confined in a jail or prison in the county in which such sentence is pronounced until within ten days of the first day of the week appointed for the execution of the sentence. He shall, within such ten days, and at a time chosen by the sheriff of the county, be conveyed as secretly as may be, by the sheriff or such deputy as he may name, to the state prison, where the sentence is to be executed, and be delivered, together with the warrant, to the warden or the officer performing the duties of warden. From the time of such delivery until the infliction of the punishment of death upon him, unless he shall be lawfully discharged from such imprisonment, the convict under sentence shall be kept in a cell provided for the purpose, and no person shall be allowed access to him without an order of the court, except the officers of the prison, his counsel, his physician, a priest or minister of religion, if he shall desire one, and the members of his family.</p> <p>“ Section 8. The sentence of death shall be executed by the warden of the state prison, or by a person or persons acting under the direction of the warden. Unless the governor pardons the offence, commutes the punishment therefor, or respites the execution, as provided by law, the execution shall be done within the week appointed by the court; and in case the execution is respited the sentence shall be executed within the week beginning on the day next after the day on which the term of respite expires. The execution shall be done upon such day as the warden shall select within the week determined as aforesaid, and at an hour between midnight and sunrise ; but no previous announcement shall be made, except to the persons who shall be permitted to be present at such execution, as hereinafter provided.”</p> <p>“ Section 6. The punishment of death shall in every case be inflicted by causing to pass through the body of the con'vict a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until such convict is dead.”</p> <p>Article 26 of the Declaration of Rights is as follows:</p> <p>“ No magistrate or court of law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.”</p> <p>The cases upon both petitions were heard by Loving, J., who reserved them for the consideration of the full court in order that this court might make such order therein as in their opinion law and justice might require.</p> <p>The second assignment of error alleged that the punishment provided by the statute was in fact unusual, the third assignment that it was in fact cruel or unusual and the fourth assignment alleged that the statute provided for the infliction of the punishment of death by means which in fact are cruel, unusual, of an uncertain character, and which in fact necessitate for their successful action a remote combination of circumstances circuitously affecting the functions of organic life, by secret and invisible means, which means, in fact, are unusual, cruel and unknown to the laws of this Commonwealth, and which punishment is contrary to the provisions of article 26 of the Declaration of Rights and contrary to the provisions of the Constitution of Massachusetts.</p> <p>The justice in his reservation made the following report of his findings upon the above allegations of fact contained in the assignments of error:</p> <p>“ Against the objection of the Attorney General, the second, third, and fourth assignments of error came on to be heard before me as assignments of errors in fact. It was conceded by the Commonwealth that the petitioner in this writ of error is a citizen of the King of Italy; that the punishment of death by electricity has never been inflicted in this Commonwealth and that electricity has never been used as a means of punishment for any offence in this Commonwealth.</p> <p>“ I find as a fact that if electricity is properly applied it is necessarily fatal, and causes death practically instantaneously; that in causing death it is more speedy, less painful, and more humane than is hanging. I further find as a fact that it is not of an uncertain character; that it does not in fact necessitate for its successful action a remote combination of circumstances circuitously affecting the functions of organic life by secret and invisible means.</p> <p>“ I also find that by the Revised Statutes of Maine (1883), by the Revised Statutes of Illinois (1899), Revised Statutes of Arizona (1887), Statutes and Code of Washington (1891), Code of Tennessee (1896), Revised Statutes of Florida (1892), Code of Alabama (1896), Revised Statutes of New York (1829), and Revised Statutes of Ohio (1890), it is provided that the means of carrying into effect the sentence of death shall be by hanging by the neck; and that by the statutes of Ohio (revision of 1900) it is provided that the means of carrying into effect the sentence of death shall be by causing a current of electricity to pass through the body sufficient to cause death; and that a statute was enacted in New York in January, 1888, providing that 'the punishment of death shall be inflicted by causing a current of electricity to pass through the body of the convict, and such current must be continued until the convict be dead.</p> <p>“ I find as a fact that the second, third, and fourth assignments are not true.”</p>

<p>Tort by the employee of a coal dealer against a corporation owning and maintaining a tenement house in Clinton for injuries caused to the plaintiff by the breaking of a hook at the end of a rope running over a wheel attached to the building, while the plaintiff was hoisting a basket of coal for delivery to one of the tenants of the defendant. Wrifi dated March 8, 1894.</p> <p>The case was first tried in the Superior Court, before Hopkins, J., who directed a verdict for the defendant. The plaintiff alleged exceptions which were sustained by this court in a decision reported in 170 Mass. 471.</p> <p>At the new trial in the Superior Court, before Graskill, J., the defendant asked the judge to make the following rulings:</p> <p>1. There was no sufficient evidence to warrant a verdict for the plaintiff. 2. In order to recover, the plaintiff must prove that the apparatus had become defective since the tenement was let to the tenant Dias, and the defendant is not liable for an original defect in the apparatus. 3. The tenant took the apparatus in the condition in which it was at the time of the letting, and the landlord is not liable for the condition of the apparatus at the time of the letting, even if the jury should find that it was reserved by the landlord under the conditions before stated.</p> <p>The judge declined to give the first ruling and upon the question raised by the second and third rulings prayed for, instructed the jury as follows:</p> <p>“ Now with reference to the allegation of the plaintiff that that original fall and tackle as put originally there was defective at the outset, and was unsafe for the purpose for which it was intended. The Jaw which I give to you with reference to that is this,— that if that tackle when originally put in place, and when the tenement upon the fifth floor was rented to Dias, was in a condition such that Dias knew or ought to have known what its condition was, then if no change took place in that condition down to the time of the accident, the plaintiff cannot recover. If, however, you find that Dias did not know and could not by the exercise of ordinary inspection and care have known what the condition of that tackle was, but that the defendant did know or ought to have known that it was unsuitable and unsafe for the use for which it was contemplated, then so far as the original construction was concerned there might be liability but only upon that ground, because the general rule is that a tenant in going into a tenement hired by him, which he has opportunity to inspect, nothing hidden, takes that tenement exactly as he finds it, and he cannot impose upon the landlord the duty to change that tenement or its appliances; he takes his risk; he is not obliged to hire, but if he sees it and there is nothing hidden, then he. assumes so far as the defendant is concerned, or the landlord, the condition of things as it is.</p> <p>“ The variation from that proposition which I have made to you is important if you find it to have existed, and that is, if Dias did not know although it was»apparent, or ought not reasonably to have been expected to know from inspection of the premises that that was unsuitable, and the defendant did know or ought to have known that it was unsuitable, then there is an element of responsibility and obligation and of possible liability.”</p> <p>The defendant excepted to the refusal to give the rulings prayed for and to the instructions given so far as they differed from those requested. Instructions not excepted to were given as to reservation of control of the apparatus in question by the landlord and all other parts of the case. The evidence was substantially the same as at the former trial with the addition of the evidence then excluded and now admitted under the decision of this court. A statement of the evidence at the former trial and of the evidence then offered and excluded will be found in 170 Mass. 471.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>The owner of a mill pond created by damming a natural stream conveyed to a railroad company, for the purpose of constructing and maintaining, its road, land on both sides of the pond “with all privileges, and appurtenances thereto belonging,” “ Reserving, however, to the grantor, his heirs and assigns forever the right to all the water power created by a dam on the premises of the present height of the rolling part of the dam now standing on the premises.” Held, that by this reservation the owner reserved the right to have all the water that naturally would come down the stream to the dam flow over it, and that any substantial diversion of the water by the railroad company, as it passed over its land before reaching the dam, would constitute an interference with the rights of tlie mill owner which would be enjoined in equity.</p> <p>A diversion of water from a mill pond amounting to twenty-six one hundredths of a horse power a day, the total power of the mill owner’s privilege being two hundred horse power a day, is á substantial diversion which, if unauthorized, will be enjoined in equity. Whether an unauthorized diversion not substantial would be enjoined, quoere.</p>

<p>Contract in the name of the executors of the will of John Foster, late of Boston, on a promissory note, made by John Foster of Manchester, New Hampshire, alleged to have been assigned and transferred by John Foster, late of Boston, to George Foster in trust for certain persons, for whose benefit the suit was alleged to have been brought. Writ dated May 4, 1899.</p> <p>The note as set forth in the declaration was as follows : “$2352.98/100. Boston, January 1, 1880. For value received I promise to pay to the order of John Foster, of Boston, twenty-three hundred fifty-two dollars 93/100 on demand, with interest. John Foster.” [of Manchester.]</p> <p>The alleged assignment indorsed on the note was as follows: “ Pay, when able, three fourths of the within note and interest to George Foster for the benefit, share and share alike, of his sons George S., Charles E., and Herman, and whenever the above payments shall have been made in full your liability on the within-written promise shall cease. John Foster.” [of Boston.]</p> <p>The declaration further alleged, that John Foster of Boston assigned and transferred the note to George Foster, in trust, by the following letter: “ Boston, April 6, 1880. Dear Brother, Enclosed herewith please find note of your son, John Foster, dated January 1,1880, on demand, and interest, for $2352.93, twenty-three hundred fifty-two 93/100 dollars, which you will please accept and hold for the purposes set forth in indorsement on the same. Yours affectionately, John Foster. Mr. Geo. Foster, Manchester, N. H.”</p> <p>The defendant pleaded in abatement that the action was brought and prosecuted without the authority or consent of the nominal plaintiffs, and also without authority to represent the estate of George Foster, eighteen years before deceased.</p> <p>The plaintiffs, executors of the will of John Foster, late of Boston, moved that the action b,e dismissed on the ground that it was brought and prosecuted without their authority or consent.</p> <p>The Superior Court sustained the motion and dismissed the action, and the attorneys of record for the plaintiffs, “ representing the estate beneficially interested in said suit,” appealed from the prder.</p>

<p>A householder maintaining a conductor for carrying water from his roof emptying on a shallow granite gutter crossing a public sidewalk, which by its natural and intended use causes ice to form, rendering the sidewalk dangerous for public travel, is liable to one injured thereby for maintaining a public nuisance, although the conductor and granite gutter had been constructed before he bought the house and he never had been requested to change them.</p> <p>In an action at common law to recover for an injury caused by ice on a sidewalk formed by reason of a conductor and gutter maintained by the defendant, Pub. Sts. c. 62, § 19, requiring notice of the time, place and cause of injury, has no application.</p>

<p>A deed to a railroad company conveyed certain lots of land on a street called Regent Street. Another deed of the same and other grantors conveyed to the same company other lots on the same street. The express descriptions excluded Regent Street. The first deed then contained this clause “Also intending to convey to the grantee all my rights in said Regent Street above mentioned.” The second deed contained the clause “ Also intending to convey to the grantee all our rights in said Regent Street.” The grantors owned many other lots on Regent Street, which was over twenty-seven hundred feet in length. Subsequently a portion of Regent Street adjoining these other lots was discontinued as a highway and taken by the railroad company for the purposes of its road. Held, that the deeds above described conveyed the fee of the grantors only in those parts of Regent Street adjoining the lots conveyed to the railroad company and not in those parts of it adjoining the lots retained by the grantors, and that the owners were entitled to any damages they could prove for the taking of their property for railroad purposes.</p> <p>If land which has been taken for a highway is subsequently taken by a railroad company for the purposes of its road, the highway being discontinued, the new use to which the land is subjected may be more onerous to the landowner than the former one, and he is entitled to recover damages, if he can prove them.</p>

<p>A married woman took out an insurance policy on the life of her husband and, after paying premiums on it for several years, gave it to her husband for safe keeping. He without the consent or knowledge of his wife surrendered the policy, and took out in exchange a new policy payable to Ills legal representatives. This policy he assigned and the assignee paid the premiums on it until the death of the assured. The widow, then first learning of the new policy, sued on the original policy issued to her, contending that it was still in force and that the payments of premiums on the new policy were applicable to the old one. Held, that the first policy was forfeited for non-payment of premiums, the payments on the new policy having been made upon a contract to which the plaintiff was a stranger. Whether the plaintiff was entitled to recover the surrender value allowed by the terms of the policy, quwre.</p> <p>An act or representation in order to create an estoppel or constitute a waiver must have been known and relied upon by the person seeking to set it up.</p>

<p>Complaint in the Police Court of the city of Brockton, charging the defendant with a violation of St. 1884, c. 277, as amended by St. 1898, c. 576, in selling goods with trading stamps as an additional inducement, filed September 27, 1900.</p> <p>At the trial, before Fox, J., in the Superior Court for the. county of Plymouth, to which the case came by appeal, the defendant pleaded not guilty, and agreed that if the government witnesses were called they would testify in substance to the following facts:</p> <p>The defendant, acting as a clerk in a drug store, on the day named in the complaint, sold to the person named in the complaint a certain hair brush, and at the same time, and as part of the same transaction, delivered to that person twenty-five stamps or coupons, which entitled the purchaser to demand of the National Discount Stamp Company any one of a number of articles on exhibition at the store of that company that the purchaser might select; that the National Discount Stamp Company is the business name of an association of individuals other than the proprietor of the store where the brush was sold and where the coupons or stamps were delivered to the person named in the complaint.</p> <p>The defendant then offered to show the following facts as a defence, and the Commonwealth agreed that his witnesses would so testify, if the evidence was competent and constituted a defence, but denied that it did so, and objected to its introduction.</p> <p>The evidence offered and agreed to was, that the merchant makes a contract with the stamp company to give out their stamps with every cash purchase of ten cents, or multiples of that sum. These stamps are given to the purchaser of goods from the merchant and are taken to the store of the stamp company, where they are exchanged for any one of a large number of articles that the purchaser may select. These articles are on exhibition all the time, and are of sound value, and the number of stamps necessary to obtain an article is indicated on the article. These articles consist mainly of furniture and household utensils. The value of the article given in exchange for stamps varies in accordance with the number, of stamps offered for exchange. In the present case twenty-five stamps were offered in exchange, and a cup and saucer were given by the stamp company for the twenty-five stamps. The specific subject of the sale was the hair brush, and the stamps were delivered as a bonus. The merchants who give stamps for cash trade, display signs in their windows to that effect. Every purchaser knows what he is buying, and can select at the store of the stamp company, even before his purchase from the merchant who gives stamps, the article that he wants in exchange for the stamps which are given with the article purchased.</p> <p>On the above facts the defendant requested the judge to rule that the defendant could not be convicted, on the ground that St. 1898, c. 576, was unconstitutional. The judge refused so to rule, and instructed the jury that the act was constitutional, and that the evidence for the Commonwealth, as agreed to by the defendant, would, if believed, be sufficient to justify a verdict of guilty. To the refusal to rule as requested, and to the ruling given, the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p> <p>St. 1898, c. 576, is entitled “ An Act relative to trading stamps, coupons and other devices,” and reads as follows:</p> <p>“ The provisions of chapter two hundred and seventy-seven of the acts of the year eighteen hundred and eighty-four shall apply to the giving of any stamp, coupon or other device which entitles a purchaser to demand or receive from any person or company other than the merchant dealing in the goods purchased or the manufacturer thereof, any other property than that actually sold or exchanged; and also, to the delivery by any person or company other than the merchant dealing in the goods purchased or the manufacturer thereof, of any goods, wares or merchandise upon the presentation of such stamp, coupon or other device.”</p> <p>Chapter 277 of the acts of the year 1884, referred to in the statute above quoted, is entitled “ An Act to prevent the sale or exchange of property under the inducement that a gift or prize is to be part of the transaction,” and reads as follows :•</p> <p>“ Section 1. Mo person shall sell, exchange or dispose of any property, or offer or attempt to do so upon any representation, advertisement, notice or inducement that anything other than what is specifically stated to be the subject of the sale or exchange, is, or is to be delivered or received, or in any way connected with, or a part of the transaction.” The only other section of the statute provides a fine of not less than $10 nor more than $500 for a violation of the above provision.</p>

<p>Contract by a corporation to recover damages sustained by reason of the failure of the defendants, copartners doing business under the name of Columbia Smelting and Refining Works, to deliver certain metals which the defendants had agreed to sell and deliver to the plaintiff at prices named. Writ datfed October 6, 1899.</p> <p>At the trial in the Superior Court, before Stevens, J., without a jury, the facts were proved as stated in the opinion of the court-, and the only question raised by the exceptions related to the measure of damages.</p> <p>The contract required the defendants to deliver the goods on February 1,1899. On January 25,1899, the defendants wrote to the plaintiff that they would not carry out’ the order of the plaintiff accepted by their agent the day before, as metals had advanced in value. It appeared that the market price of the metals contracted for was greater on February 1, the day fixed for performance, than on January 25, when the defendants wrote their letter above mentioned, both prices being above that named in the contract.</p> <p>The plaintiff requested the judge to rule, that the measure of the damages which the plaintiff was entitled to recover was the difference "between the price expressed in the memorandum of sale and the market price on February 1, 1899, the date therein fixed for delivery. The judge refused so to rule, but ruléd that the measure of damages was the difference between the price expressed in the memorandum and the price quoted in the letter from the defendants to the plaintiff under'date of January 25, 1899. To this ruling and refusal to rule the plaintiff excepted.</p> <p>The judge found for the plaintiff in the sum of $175,03 ; and the plaintiff alleged exceptions.</p>

<p>Contract to recover the amount of the defendant’s tax in the town of Hampden for the year 1896. Writ in the Police Court of the city of Springfield, dated April 24, 1897.</p> <p>The answer contained a general denial and a plea of payment. At the trial on appeal in the Superior Court, before Maynard, J., it appeared, that the plaintiff was tax collector of the town of Hampden for the years 1895, 1896 and 1897; that during the year’s 1895 and 1896, and a portion of 1897, some of the taxpaj'ers of that town had, as a matter of convenience to themselves, paid their taxes directly to John Q. Adams, the treasurer of the town ; that such payments were so made with the sanction of the plaintiff, and that the defendant’s tax for 1895 was so paid; that Adams receipted the bills so paid as previously made out and sent to the taxpayers by the plaintiff by signing the plaintiff’s name as collector, “ By J. Q. Adams, Treas.,” on the face of the bill, and that the money so paid was credited to' the plaintiff in settlements thereafter made by him with Adams. It further appeared in evidence, that on April 8,1897, the plaintiff brought a suit against the defendant for the same cause of action as here, which was entered in the same Police Court, but on the day the present suit was brought the former suit was, on the defendant’s motion, dismissed for insufficient service; and that while the first suit was pending the tax for 1896 was paid by the defendant to Adams.</p> <p>The plaintiff testified that before bringing suit he asked the defendant several times to pay the tax declared on; that on the fifth day of the April in which both suits were brought, he told the defendant he would like his tax money, and the defendant replied, “ Get it if you can,” to which the plaintiff said, “ I can get it, and you will come pretty' near paying it to me ” ; that on the same day the plaintiff called on Adams and notified him not to receive any more money from the defendant for taxes, and not to receipt in the plaintiff’s name on any bill, as he was going to collect Ballard’s tax, and that Adams replied, “ All right.”</p> <p>On cross-examination, the plaintiff further testified that on the evening of April 12, and before the commencement of the present suit, Adams informed him that the defendant had paid him some money, and that afterwards he inquired of Adams what kind of a receipt he had given the defendant; that Adams informed him, and that the plaintiff took a copy of the receipt which he had given the defendant.</p> <p>The plaintiff was permitted to introduce, against the defendant’s objections and exception, records of the Police Court, showing that a suit was brought by the plaintiff against the defendant in that court by writ dated April 8, 1897, and returnable on the seventeenth day of the same month, to recover the same tax, and that, upon the defendant’s motion, that action was dismissed on the twenty-fourth day of April on the ground "of insufficient service, this evidence being introduced and admitted for no other purpose than as bearing upon the defendant’s knowledge that, at the time the tax was paid by him, the authority of Adams to receipt bills had been revoked, and that he had no authority to receive taxes, and the jury was fully instructed that the record so offered had no other purpose and was not to be otherwise considered.</p> <p>Adams was called by the defendant, and testified in substance that on the occasion of his first interview with the plaintiff, above referred to, the plaintiff did not instruct him not to receive any more taxes, but instructed him not to sign the plaintiff’s name to any more tax' bills; that Adams replied that he did not see how he could refuse to receive any more money, and that thereupon the plaintiff repeated the instructions not to sign his, the plaintiff’s, name to any more tax bills.</p> <p>On cross-examination, Adams testified that on the twelfth day of April the defendant came to him to pay his tax; that he informed the defendant that the plaintiff had instructed him not to receipt any more tax bills in his name ; that the defendant then inquired if he could not take the money and give him a receipt in his own name, and Adams replied, “ I don’t know of any objection to that,” and that he ‘took the money and made out a receipt. Adams further testified that within a few hours after the defendant had paid him his tax he informed the plaintiff of the payment, and the plaintiff took a copy of the receipt which Adams had given to the defendant; that at the time the tax was paid he was not informed by the defendant, and had not been informed, that a suit was pending, for the recovery of the tax; that had he known of the pendency of such suit he should not have received"it; that the plaintiff refused to accept the money paid by the defendant. The wife of Adams and the defendant himself described the payment to Adams in substantially the same manner.</p> <p>On cross-examination, the defendant testified that he said nothing to Adams regarding the suit then pending for the recovery of the tax, and that he knew there was some ground upon which he could get the then pending suit dismissed.</p> <p>At the close of the evidence, the defendant requested the judge to instruct the jury that Adams’s authority to receive payment having been established; the burden was upon the plaintiff to prove that the authority had been revoked, and that knowledge of its revocation had been brought home to the defendant prior to the payment on the twelfth day of April.</p> <p>The judge, so far as material to the exceptions, instructed the jury as follows :</p> <p>“ This is a suit brought by the tax collector of the town of Hampden against a person who was assessed taxes which the collector says have not been paid. It was lawful for Mr. Whitaker to appoint Mr. Adams his agent, to receive the money, and if he did appoint him his agent, and while that agency lasted, anybody who paid the money to that agent under the authority of .Mr. Whitaker, would make a good payment, but after the authority was revoked it would not be a good payment unless it had not come to the knowledge of the party paying, or there were such circumstances surrounding it that the party would be led to suppose that the authority had been revoked. There is no question but what Mr. Adams had authority from this collector to receive and receipt for taxes up to the 5th of April, and there is where the divergence comes. The plaintiff says that on the fifth day of April he told this treasurer that he must not take any more money for the taxes of this defendant. There has been introduced in this case the record of a former suit. That is, this tax- collector, before this money was paid, brought a suit against Ballard, but upon the inspection of the record it appears that the papers were served by a constable, and the constable had no authority to serve such papers, and when it came into court the defendant made a motion to have the suit dismissed, aiid the suit was dismissed, and upon the day it was dismissed the plaintiff started a new suit in place of it, which is the suit being tried. That affects nothing except as you may think it may have some bearing upon the question whether or not Ballard understood from that that Adams had' no longer any authority to collect the taxes. That is one of the considerations which you have a right to take into account as bearing upon Ballard’s knowledge whether or not Adams had any further right to take the taxes in place of Whitaker, whether or not he was not put upon his guard. Passing that, was Adams’s authority to take the money revoked ? Of course, if Adams’s authority was not revoked, if Adams, when this money was paid, still had authority to receive it, and the authority had not been revoked by Whitaker, then it was a good payment of the taxes, and this suit cannot be maintained. It is agreed that up to the fifth day of April Adams had authority to receive taxes on Whitaker’s account and give a receipt for them. If that authority never was revoked up to the time the money was paid, it would be a good payment. But the plaintiff contends that that authority was revoked. If you find that authority never was revoked, you need not proceed to consider the matter any further, because that would be a good payment and the defendant would not be liable. If you find that it was revoked, then the only remaining question is when Ballard turned that money over to Adams, did he turn it over in payment of his tax, and did he do it in good faith, with the understanding and belief that the authority of Adams to receive it still existed ? As bearing upon that point, you will consider what had taken place between the parties, that.is, the suit which had been brought before. That does not necessarily decide it, but you have a right to take it into account, the conversation which had taken place between Ballard and this tax collector, the tax collector testifying that he had told Ballard previously that he would have to pay the money to him, and Ballard’s statement that Whitaker did not so inform him, and Adams’s statement-that he told Ballard he could not give a receipt. What had Ballard a right to understand from that ? .</p> <p>“ Taking all those things that took place between the parties, when Ballard went there to pay that money, did he, acting reasonably, honestly, understand and believe that the authority of Mr. Adams still existed to take that money? If, taking all those matters into consideration, you find that Ballard, acting reasonably, as a man of reason, honestly believed that Adams had the right to take that money in settlement, then he is entitled to a verdict, but if, on the other hand, you find that the authority was revoked, and that when he came with the money, acting as a man reasonably ought to act, he had reason to suppose that-that authority had been révoked, then it would not be a good payment and Ballard would be liable for the amount of this tax, and .interest from the date of the writ. In the first place, was the authority of Adams to receive the money revoked ? If it was not revoked, then it was a good payment. If it was revoked, then the burden is upon the plaintiff to show this bjr a fair preponderance of the evidence. Does the evidence satisfy you that Ballard paid that money in good faith, having reason to believe that the authority of Adams to take that money still existed ? If he did, it is a good defence. If not, the defence cannot prevail.”</p> <p>The defendant again requested the judge to instruct the jury, that Adams’s authority to receive payment having been established, the burden was on the plaintiff to prove that the authority had been revoked, and that knowledge of its revocation had been brought home to the defendant prior to the payment on the twelfth day of April, 1897. Except as above, the judge refused so to instruct the jury. To the refusal to rule as requested and to the admission of the record of the former suit, the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Writ of entry brought by "a devisee under the will of Mary Foster to recover a parcel of land in Beverly from tlie heirs at law of Martha P. Trow claiming under a deed from William A. Foster, husband of said Mary, purporting to be made in execution of-a power given him by her will, dated March 27, 1899.</p> <p>At the trial in the Superior Court, before Pierce, J., without a jury, the following facts áppeared :</p> <p>The demandant was the Samuel M. Stocker mentioned in the fourth .article of the will of Mary Foster. Thé tenants were in possession of the demanded premises claiming title by inheritance from Martha P. Trow.</p> <p>The will of Mary Foster was dated December, 1869, and omitting- the introductory paragraph and the attesting clause, was as follows:</p> <p>“ First. I constitute and appoint my said husband, William A. Foster, sole executor of this my last will.</p> <p>“ Second. All my estate both real and personal, of which I may die seized and possessed, or to which I may he entitled at' my decease, I give, devise and bequeath to my husband William A. Foster,-to have and hold the same to him for and during his natural life; with full power and authority to sell and dispose of any and every portion thereof, whenever in his judgment he may deem it conducive to his comfort.</p> <p>“ Third. At the decease of my said husband, all the residue of my said estate, that shall not be sold or disposed of by my said husband during his lifetime, I give, devise and bequeath as follows: To my sisters Susan Fiske and Martha Raymond, all my silver spoons. To my nieces Hattie and Nancy Stocker, my watch, rings, jewelry and' silver tea service, to be divided equally between them, and to my said sisters Susan Fiske and Martha Raymond, and to the survivor of them I give, devise and bequeath, the use, improvement and income of all of said residue of my estate, that shall be remaining at the decease of my said husband and which I have not hereinbefore in this clause of my will specifically disposed of, to have and to enjoy the same during their natural lives and the life of the survivor of them.</p> <p>“ Fourth. After the decease of my said sisters I give, devise and bequeath all my estate, that shall not have been sold or disposed of by my said husband, during his life, and which shall be remaining at his decease (except so much thereof, as I have disposed of in the third clause of this will) to Samuel M. Stocker, son of John M. Stocker of Lynn, to have and hold the same to him and his heirs and assigns forever.”</p> <p>Mary Foster died February 7, 1871, and her will was duly admitted to probate in the county of Essex, on the seventh day of March, 1871. At the time of her decease, she owned the-demanded premises, ydiich she inherited from her father. She died without- issue, and her husband, William A. Foster, and her sisters, Martha Raymond and Susan Fiske, mentioned in the will, survived her. Martha Raymond died September 7,1879, and Susan Fiske died April 4, 1887.</p> <p>William A. Foster married a second time on November 18, 1872, and died July 24, 1898. The tenants are the only children of William A. Foster by his second wife. The second wife was the daughter and only child of Martha P. Trow, and died April 29, 1897. The 'tenant,- William A. Foster, was born December 12, 1873, and the tenant, Arthur T. Foster, May 12, 1879. Martha P. Trow died, intestate, April 29,1898.</p> <p>The deed from William A. Foster to 'Martha P. Trow was dated January 1, 1876, and began as follows:</p> <p>“ Know all men by these presents That I, William A. Foster of Beverly, Essex .County, Massachusetts, by authority of and under the will of my former wife, Mary Foster, as in my judgment it will now be conducive to my comfort to make this conveyance and to sell and dispose of the estate hereinafter described and in consideration of four thousand five hundred dollars to me paid by Martha P. Trow of said town of Beverly the receipt whereof is hereby acknowledged do hereby give, grant, bargain, sell and convey unto the said Martha P. Trow and her heirs and assigns forever, all that estate in said Beverly described in the deed of Susan Raymond and Martha Raymond to their sister, my said former wife, by deed. . . . hereby conveying and intending to convey all the lands described in said several deeds including all that my said former wife inherited as well as what was conveyed in the deed of her said sisters, my said former wife having devised all her estate to me with full power and authority to sell and dispose of any and every portion thereof whenever in my judgment I may deem it conducive to my comfort. I do now make this conveyance under that authority, it being my judgment that it will conduce to my comfort so to do, and on account of the money consideration aforesaid.”</p> <p>The remaining portion of the deed contained a conveyance of a lot owned by the grantor in his own right and continued in the ordinary form of a warranty deed.</p> <p>The tenants introduced in evidence a promissory note of Martha P. Trow for $4,500 dated January 1, 1876, and payable to the order of William A. Foster. They also introduced in evidence an instrument in writing purporting to be a lease of the demanded premises signed by Martha P. Trow and reading as follows: “I hereby lease and let to William A. Foster of Beverly all the estate this day conveyed to me by him for the term of six years from this date, he yielding and paying therefor an annual rent of Three hundred and fifty dollars at the end of each and every year, he also paying the taxes on said property, and to have the right of renewal of this lease on the same terms as above and for the same term of time after the first six years have elapsed. Witness my hand and seal hereunto this first day of January in the year eighteen hundred and seventy-six.”"</p> <p>William A. Foster, one of the tenants, testified that he was the son of the William A. Foster named in the will, and the grandson of Martha P. Trow ; that he found the note for $4,500 among his father’s effects; that the lease was either with his father’s or his mother’s effects where they kept them together in a certain drawer. On cross-examination he testified that he believed that he found the lease and note together in the same drawer; that there were other papers in the drawer with them; that the deed was not with them; that he and his brother together found the deed; that it happened some time ago; that he could not say just exactly where they found it; that the deed was found among his grandmother’s effects;, that his grandmother, his father, his mother, and his father’s children, always formed one family, living together in the same house harmoniously; that they did not live on the farm which is in controversy in this case, which was carried on by a man named Taylor, and had been so carried on ever since he could remember; that his father retired from business with a competency and had not been in any business except carrying on this farm since he could remember.</p> <p>George W. Taylor, a witness for the demandant, testified that he occupied the farm in controversy in this case, and lived there until the February after Foster died; that before 1876 he carried on the farm for Foster, and received some compensation from him for doing so; that he received the same compensation, after 1876 ; that before and after 1876, Foster gave directions in regard to the way and manner of carrying on the farm; that there was not any time when any person other than Foster gave him directions in regard to the farm.</p> <p>Taylor was permitted by the judge in the exercise of his discretion under St. 1898, c. 535," to testify against the objection and subject to the exception of the tenants to a conversation which he had with Foster, several years before Foster’s death.</p> <p>This conversation took place in the barn on the farm, and was as follows: “ Q. What did he say to you about it? A. Well, he said, ‘Now,’ says he, ‘Now, I have got my property fixed ’ or ‘ my farm fixed so that my boys shall have it — my children shall have it.’ Them is the words said to me — the remarks. I laughed at him and told him I thought it was all right before, and then he says — Pierce, J. Did he say children or boys ? A. He said children.”</p> <p>“ Q. You have stated that talk as nearly as you now recollect and as fully as you now recollect it? A. Yes.— Q. Now, to refresh your recollection, did he tell you at that time in any form of words that he 'had deeded it to the old woman Trow because the children would not get it otherwise ? A. I think he did.”</p> <p>To the ruling of the judge admitting this testimony, the tenants excepted. ■</p> <p>The judge ruled that it was competent for the demandant to prove the .pecuniary condition and circumstances of William A. Foster on the date of the deed to Mrs. Trow ; and to this ruling the tenants excepted. Without 'waiving their exception to the ruling admitting such proof the tenants admitted that William A. Foster retired from business before the death of his first wife, and that at the time of her death and ever since he had a competency and was a man of means; that at the time of his decease he had personal estate of the value of $25,000 to $30,000 and owned several parcels of real estate in Beverly. The value of this real estate did not appear in evidence.</p> <p>Robert W. Osgood, a witness for the demandant, testified that he was employed in the registry of deeds for the southern district of the county of Essex; that he had a book containing entries showing the dates that deeds are left for record, and testified to the following entry: “ August 16, 1888, docket number 18, time 2.35, a deed from William A. Foster to Martha P. Trow, land in Beverly, deed delivered to William A. Foster.” This entry was admitted in evidence against the objection and. subject to the exception of the tenants.</p> <p>At the request of the demandant the judge ruled as follows : 1. The burden is on the tenants to prove a valid execution of the power. 2. On the evidence in this ease it is competent for the court to find that there was not a valid execution of the power. 3. If William Foster conveyed the land in question for the sole purpose of making a gift of it to Mrs. Trow in order to have it enure to the benefit of his second wife and their children, and without receiving or intending to receive any valuable consideration for it, then such conveyance was not a valid execution of the power. 4. The power in the will authorized Foster to sell or otherwise dispose of the property for a valuable consideration whenever in his judgment he deemed the proceeds of such sale or disposition conducive to his comfort. The word “ dispose ” in the clause “ to sell and dispose ” falls within the rule nosoitur a sociis, and the power is not executed by a gift made in the form of a sale. 5. If the deed was given without receiving or intending to receive a valuable consideration for it, it was not an execution of the power. 6. If the only consideration for the deed was a note which William Foster did not intend to collect and which he took only for the purpose of giving to the transaction, which he intended to be a gift, the form and appearance of a sale and conveyance for a valuable consideration, then such sale and conveyance was not an execution of the power. 7. The deed in question was not an execution of the power unless, in the judgment of Foster, giving the deed was conducive to his comfort by enabling him to supply his present or prospective needs by means of the consideration received for the deed. 8. If the word “ comfort ” refers to mental condition in the will, then the authority in question authorized Foster to sell or dispose of the property only for a valuable consideration and when he deemed such consideration would be conducive to his happiness and peace of mind by furnishing him with the means of supplying his present or future needs. To each of these rulings the tenants excepted.-</p> <p>The judge refused to give certain rulings requested by the demandant which the finding of the judge has made immaterial.</p> <p>The tenants asked the judge to rule that the power given by the will yas, in effect, an absolute and unlimited power to sell and dispose of the property in question at the discretion of the devisee of the power, and whenever he deemed it conducive to his comfort so to do ; that it was not competent for the court to pass upon the question whether the exercise of the power by the devisee was founded upon a reasonable judgment, or was exercised with due regard to the rights or interests of the demand-ant; and that upon the evidence the action could not be maintained. The judge refused so to rule, and the tenants excepted.</p> <p>The judge found that the transaction between William A. Foster and Martha P. Trow was a colorable transaction made without consideration, and carried out for the purpose of transferring the property in question so that it might descend to his children regardless of the will, and found for the demandant. The tenants asked the judge to rule that such a finding was not warranted by the evidence. The judge refused so to rule.</p> <p>Upon the various matters stated above the tenants alleged exceptions.</p> <p>The case was argued at the bar in November, 1900; and after-wards was submitted on briefs to all the justices.</p>

<p>The following order was passed by the House of Representatives on March 29, 1901, and on April 1 transmitted by the Speaker to the Justices of the Supreme Judicial Court. On April 25 the Justices returned the answer which is subjoined.</p> <p>Ordered, That the opinion of the Justices of the Supreme Judicial Court be required by the House of Representatives upon the following important question of law:</p> <p>Has the General Court the right to authorize the use of voting and counting machines at elections by the people of national, state, district, county, city or town officers?</p>